mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Worrell v Westpac Banking Corporation (1994) 51 FCR 304
Outcome: cited
The rights of Errol Nominees do not extend back to the date on which proceedings were commenced (cf Worrell v Westpac Banking Corporation (1994) 51 FCR 304). Indeed the rights of the proposed party have not yet come into existence. What is proposed, however, is that the rights of the new trustee will substitute for the rights of the existing trustee, which do extend back to the date on which proceedings were commenced. 45 A new trustee may by registered deed be appointed in place of a trustee (s 6(1) Trustee Act 1925 (NSW) (' Trustee Act ')). Section 6(8) provides that a new trustee appointed under this section may in all respects act as if the new trustee had been originally appointed a trustee by the instrument creating the trust. Errol Investments submits that this is reflected in O 6 r 11(2) which should therefore be applied.
Case: Yorkshire Regional Health Authority v Fairclough Building Ltd [1996] 1 All ER 519
Outcome: cited
In Yorkshire Regional Health Authority v Fairclough Building Ltd [1996] 1 All ER 519, the United Kingdom Court of Appeal considered the meaning of a "new claim" in s 35(2) of the Limitation Act 1980 (UK) and O 15 r 7 of the Rules of the Supreme Court (UK) as those provisions then provided. Order 15 r 7 relevantly provided: '(1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy. (2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.' 47 The Court observed that the rule of court, which is cast in similar but not identical terms to O 6 r 10 of the Rules contains no reference to limitation and commented '[t] his is as it should be, since the circumstances in which the rule may be invoked do not give rise to any question of limitation ' (at 523). The Court recognised that the new party is substituted because he or she has succeeded to a claim or liability already represented in the action and sues or is sued in respect of the existing cause of action. It concluded that ' the expiry of the limitation period is completely irrelevant ' (at 523). While the English O 15 r 7 specifically provided for ' the proceedings to be carried on as if he had been substituted for the first mentioned party ' and those words are not present in O 6 r 10 of the Rules, the logic of the Court of Appeal is persuasive.
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: cited
The Trust has been wholly successful on this application, which the Liquidator opposed. I do not see that there is any circumstance sufficient to avoid the usual consequence that costs follow the event: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234. 4 The critical argument which led to the Trust's success was that its obligation to pay the Liquidator's costs and remuneration out of the Fund, as appearing in the Order of 13 December 2001 as later varied, came not from the Corporations Act but from the earlier Tasmanian legislation the Legal Profession Act 1993 (Tas), s 108(2)(a)(iii). Thus no question of inconsistency under s 109 of the Constitution arose. Whether or not that point was more fully argued by counsel on behalf of the Attorney-General is, in the circumstances of this case, irrelevant. The hearing did not proceed beyond a day. The point was certainly made by counsel for the Trust. If more than one party has an interest in advancing a particular argument, there is obvious sense in counsel for one party carrying the burden of fully developing the argument rather than have repetition and duplication. 5 Likewise, given the length of the hearing, there is no reason to penalise the Trust insofar as its counsel advanced arguments which did not find favour or proved unnecessary to decide. 6 Moreover, the Liquidator, in reports to investors dated 28 August 2007 and 28 March 2008 appeared to accept that the 2007 legislation (against which he unsuccessfully lobbied) "would remove the requirement of the Solicitors' Trust to pay my accounts". Nevertheless he put the Trust to the expense of the present application. It is not reasonable for the Liquidator now to adopt, as was put in his submissions, the neutral and "clarify(ing)" role of a contradictor. If the Liquidator had succeeded, there would have been a tangible benefit for the investors whose interests he represented. 7 Turning to the form of the orders, in my earlier judgement I overlooked the order made on 1 April 2008, which further amended the 2001 Order. The April 2008 Order, which was made shortly before the 2007 legislation came into force on 7 April 2008, had the effect that if, and to the extent that, after that date payment of the Liquidator's costs and expenses was not made from the Guarantee Fund, the Liquidator should be paid from "the proceeds of the winding up order and/or such sources as may be available". The parties agree that my order should be varied so as to remove the reference to the Guarantee Fund. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 26 November 2008 Solicitors for the Solicitors' Trust: Page Seager Solicitors for the Liquidator: Toomey Maning &amp; Co Counsel for the Intervener: F Neasey Solicitors for the Intervener: Office of the Director of Public Prosecutions Date of Final Submissions: 3 November 2008 Date of Judgment: 26 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1774.html
Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: referred to
applicant made the following submissions on the effect of the s 195A visa on the proceedings: (1) The grant of the s 195A visa on 12 May 2009, removed the controversy which underlay proceedings NSD 17/2009 and SAD 52/2009. The applicant now has a visa and resides freely in the migration zone as a 'lawful non-citizen'. There is no need for an order in the nature of mandamus. (2) The basis for declaratory relief has also fallen away. A suit for declaratory relief would only result in a declaration that the applicant holds a second visa; or a determination (or declaration) that he is not in possession of a second visa. Neither outcome will alter any legal right or liability of the applicant, for he is now a lawful non-citizen. (3) The relief sought in the application is now futile. In such cases, the Court exercises its discretion to refuse relief ( Aala at [59]; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ), and it is responsible practice for an applicant to desist from pursuing such relief. (4) At the directions hearing on 3 June 2009, the Minister appeared to invite the applicant to clarify his TP visa status, suggesting that his s 195A visa was only temporary. The applicant also has no interest in acceding to such a request; he does not favour the possession of a TP visa over his current s 195A visa. It has been, and remains, common ground that the applicant fails the 'character test' under s 501 of the Act ( Pull v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 20). Any TP visa held by the applicant would be vulnerable to a new cancellation on this ground. Even if he did have such an interest, such an interest is insufficient to constitute a matter in federal jurisdiction ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [90] ).
Case: Malloch v Aberdeen Corporation [1971] 1 WLR 1578 
Outcome: referred to
to the applicant, the Minister incorrectly fuses (i) the question whether the applicant is a lawful non-citizen, being a 'non-citizen in the migration zone who holds a visa that is in effect' (s 13 of the Act (emphasis added; see definition of 'visa': s 29)), with (ii) the discrete, and now futile, question whether the applicant holds a particular visa, namely a TP visa. The applicant says that the first question is answered completely by the grant of the s 195A visa; the second question is futile. The applicant does not require a declaration regarding his possession of a second visa: 'The Court does not act in vain': Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595 per Lord Wilberforce; cited in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [58] per Gaudron and Gummow JJ.
Case: Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: referred to
to the applicant, the Minister incorrectly fuses (i) the question whether the applicant is a lawful non-citizen, being a 'non-citizen in the migration zone who holds a visa that is in effect' (s 13 of the Act (emphasis added; see definition of 'visa': s 29)), with (ii) the discrete, and now futile, question whether the applicant holds a particular visa, namely a TP visa. The applicant says that the first question is answered completely by the grant of the s 195A visa; the second question is futile. The applicant does not require a declaration regarding his possession of a second visa: 'The Court does not act in vain': Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595 per Lord Wilberforce; cited in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [58] per Gaudron and Gummow JJ. The applicant made the following submissions on the effect of the s 195A visa on the proceedings: (1) The grant of the s 195A visa on 12 May 2009, removed the controversy which underlay proceedings NSD 17/2009 and SAD 52/2009. The applicant now has a visa and resides freely in the migration zone as a 'lawful non-citizen'. There is no need for an order in the nature of mandamus. (2) The basis for declaratory relief has also fallen away. A suit for declaratory relief would only result in a declaration that the applicant holds a second visa; or a determination (or declaration) that he is not in possession of a second visa. Neither outcome will alter any legal right or liability of the applicant, for he is now a lawful non-citizen. (3) The relief sought in the application is now futile. In such cases, the Court exercises its discretion to refuse relief ( Aala at [59]; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ), and it is responsible practice for an applicant to desist from pursuing such relief. (4) At the directions hearing on 3 June 2009, the Minister appeared to invite the applicant to clarify his TP visa status, suggesting that his s 195A visa was only temporary. The applicant also has no interest in acceding to such a request; he does not favour the possession of a TP visa over his current s 195A visa. It has been, and remains, common ground that the applicant fails the 'character test' under s 501 of the Act ( Pull v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 20). Any TP visa held by the applicant would be vulnerable to a new cancellation on this ground. Even if he did have such an interest, such an interest is insufficient to constitute a matter in federal jurisdiction ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [90] ).
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 
Outcome: referred to
applicant made the following submissions on the effect of the s 195A visa on the proceedings: (1) The grant of the s 195A visa on 12 May 2009, removed the controversy which underlay proceedings NSD 17/2009 and SAD 52/2009. The applicant now has a visa and resides freely in the migration zone as a 'lawful non-citizen'. There is no need for an order in the nature of mandamus. (2) The basis for declaratory relief has also fallen away. A suit for declaratory relief would only result in a declaration that the applicant holds a second visa; or a determination (or declaration) that he is not in possession of a second visa. Neither outcome will alter any legal right or liability of the applicant, for he is now a lawful non-citizen. (3) The relief sought in the application is now futile. In such cases, the Court exercises its discretion to refuse relief ( Aala at [59]; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] ), and it is responsible practice for an applicant to desist from pursuing such relief. (4) At the directions hearing on 3 June 2009, the Minister appeared to invite the applicant to clarify his TP visa status, suggesting that his s 195A visa was only temporary. The applicant also has no interest in acceding to such a request; he does not favour the possession of a TP visa over his current s 195A visa. It has been, and remains, common ground that the applicant fails the 'character test' under s 501 of the Act ( Pull v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 20). Any TP visa held by the applicant would be vulnerable to a new cancellation on this ground. Even if he did have such an interest, such an interest is insufficient to constitute a matter in federal jurisdiction ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [90] ).
Case: Barnes v Commissioner of Taxation [2007] FCAFC 88 ; (2007) 242 ALR 601
Outcome: considered
In the recent decision of Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88 ; (2007) 242 ALR 601 , the Full Federal Court considered the question whether privilege attaches to copy documents, and confirmed that the test was whether the copy itself came into existence for the dominant purpose of giving legal advice or assistance. In that case, the Full Court considered there was an insufficiency of direct evidence as to the purpose of creation. Their Honours emphasised the need for focused and specific evidence as to the making of the copies in order to properly ground a claim for legal professional privilege. They observed at 605 that "verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege".
Case: Cadbury Schweppes v Amcor [2008] FCA 88
Outcome: referred to
Jarra Creek submits that I should proceed to determine this issue, since the Visy parties have not agreed to be bound by the outcome of the appeal from the decision of Gordon J in Cadbury Schweppes v Amcor [2008] FCA 88. 12 The Visy parties submit that it is premature to decide this issue now. They say that the Fifth List of Documents (pursuant to which they discovered and claimed privilege over the relevant documents) was only filed on 7 April 2008. Any challenges to those claims of privilege, it is said, will require an order for verification of the claims and substantive argument on the point. 13 It is not appropriate at this stage to determine whether the proofs of the Visy parties are privileged. However, I do not want to defer determination of this issue until the full appeal process from the decision of Gordon J in Cadbury Schweppes v Amcor [2008] FCA 88 has been exhausted. This would delay the matter significantly, and the matter has already had a long history. Protracted delay is not acceptable. 14 For these reasons, I require that the Visy parties verify their claims of privilege forthwith so that the matter can proceed to argument and determination if the parties are not able to reach agreement on this point. 15 The problem connected to this issue is how documents which were provided to the ACCC by third parties, and then provided by the ACCC to the Visy parties during the ACCC proceeding, should be disclosed in this proceeding without prejudice to any claims of confidentiality or any interests which the third parties may wish to assert.
Case: Cadbury Schweppes v Amcor [2008] FCA 398
Outcome: followed
After the hearing of this application, both Jarra Creek and the Visy parties filed with the Court outlines which identified issues arising for decision on this application. There are eight matters to be considered. The ACCC filed a short response in relation to issues 3, 5 and 8. In short form, the questions are: 1. Are the proofs of the ACCC and the proofs of the Visy parties subject to an implied undertaking in light of the decision of Gordon J in Cadbury Schweppes v Amcor [2008] FCA 398? 2. Are the proofs of the Visy parties privileged? 3. How should outstanding claims of confidentiality and prejudice by third parties in relation to documents adduced in the ACCC proceeding, which may be subject to implied undertakings as to their use, be resolved? 4. Are copy documents provided by the ACCC to the Visy parties namely, transcripts and exhibits, discovered documents and documents the subject of Notices to Produce privileged? 5. Should leave be granted to Jarra Creek to subpoena the ACCC to the extent that the Visy parties succeed in their privilege claims? 6. Should the further discovery sought by Jarra Creek be ordered? 7. Are the s 155 notices discoverable? 8. What form should the orders take? ISSUE 1 IS THERE AN IMPLIED UNDERTAKING? 8 Gordon J in Cadbury Schweppes v Amcor [2008] FCA 398 held that documents provided by the Visy parties to the applicant in a different proceeding before the Court (that is, the ACCC proceeding) were not subject to an implied undertaking, and that they should therefore be produced to Cadbury Schweppes Pty Ltd in the proceeding before her Honour. However, having made this order, her Honour, on the application of the ACCC, stayed the requirement for compliance for one month (which stay was later extended by Weinberg J until resolution of any application for leave to appeal from her Honour's judgment). 9 In my view, the reasons of her Honour are applicable to the present case. I also consider that the Visy parties should be immediately released from their implied undertaking, subject to the opportunity being given to any third parties to make submissions before disclosure of any documents in which they have an interest. Any interests of third parties which may be prejudiced should be protected under the regime prepared in relation to Issue 3 below. 10 It is important to note that Jarra Creek submitted that the implied undertaking automatically yields to orders for discovery which I made in this proceeding on 31 March 2008. I do not consider that those orders displace the implied undertaking, or that they were intended to do so.
Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: considered
The most relevant authority in relation to copy documents is the decision in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501. In that case, the High Court undertook a detailed examination of legal professional privilege in circumstances where some original documents were not privileged, but a separate claim of privilege was advanced in respect of copies of those documents which were made for the purpose of obtaining or giving legal advice or for use in legal proceedings. It is important to note that, in Propend 188 CLR 510, the documents in question were not created by a stranger to the litigation.
Case: Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; (2005) 225 ALR 266
Outcome: referred to
The relevant principles as to legal advice and litigation privilege are helpfully summarised by Kenny J in Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; (2005) 225 ALR 266 at 278-282.
Case: Esso Australian Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: cited
In the leading case of Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 677, Barwick CJ expressed the general principles as to privilege in the following terms: '... a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' (Emphasis added.) From these observations of Barwick CJ, it is clear that he considered that privilege is to be determined not solely by reference to the purpose of the person who actually made the copy, but also by reference to the purpose of the person who directed or authorised the copy. Although his Honour was in a minority in that case in adopting a dominant purpose as opposed to a sole purpose test, his Honour's observations are apposite to present circumstances, particularly in light of the later conclusion of the High Court that privilege is determined by reference to the dominant purpose: see Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: considered
In the leading case of Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 677, Barwick CJ expressed the general principles as to privilege in the following terms: '... a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.' (Emphasis added.) From these observations of Barwick CJ, it is clear that he considered that privilege is to be determined not solely by reference to the purpose of the person who actually made the copy, but also by reference to the purpose of the person who directed or authorised the copy. Although his Honour was in a minority in that case in adopting a dominant purpose as opposed to a sole purpose test, his Honour's observations are apposite to present circumstances, particularly in light of the later conclusion of the High Court that privilege is determined by reference to the dominant purpose: see Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49.
Case: Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332
Outcome: considered
The principles summarised by Gummow J in Hartogen 36 FCR at 568-569 were affirmed and applied by Batt JA in the Victorian Court of Appeal in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 338, with whom Charles and Callaway JJA agreed. In that case, the reports in question were commissioned by the solicitors. His Honour considered that the relevant purpose included the intention of a person under whose direction the relevant document is brought into existence.
Case: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802
Outcome: related
Aspects of the background to this matter have been briefly discussed in my previous judgments: see Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 ; Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; and Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391. I set out below in short compass some additional background information relevant to this application.