mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: followed
The appellant, Mr Boensch, contends that his Honour was in error in concluding that the tender was deliberate and that any claim of inadvertence had been eschewed. Mr Boensch submits that, upon the proper application of the principle stated by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13, there was no implied or accidental waiver of privilege in the six documents. 4 The essential reason why this issue arises is the failure of the solicitor who produced the documents to the first respondent, Mr Pascoe, and to the Court, to make proper enquiry as to the extent of the materials comprised within the documents that were produced and tendered. 5 In the hope of maintaining clarity in my analysis of the question, I will endeavour to distinguish between the documents produced or referred to at various stages of the proceeding. 34 The test of implied waiver of privilege was stated by the High Court in Mann v Carnell at [29]. Their Honours pointed to an intentional act of disclosure which was inconsistent with the maintenance of confidentiality in the communication. 35 Their Honours went on to say that "[w]hat brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality". They said the test is "not some overriding principle of fairness operating at large". 37 It is unnecessary for present purposes to determine whether or to what extent the provisions of s 122 of the Evidence Act dealing with the circumstances in which privilege may be lost correspond with the common law principles; see Mann v Carnell at [23]; see also Van Zonneveld v Seaton [2004] NSWSC 960 at [11] (per Campbell J).
Case: Van Zonneveld v Seaton [2004] NSWSC 960
Outcome: referred to
It is unnecessary for present purposes to determine whether or to what extent the provisions of s 122 of the Evidence Act dealing with the circumstances in which privilege may be lost correspond with the common law principles; see Mann v Carnell at [23]; see also Van Zonneveld v Seaton [2004] NSWSC 960 at [11] (per Campbell J).
Case: Lambe v Director-General of Social Services (1981) 57 FLR 262
Outcome: cited
An example of an earlier statutory formula giving effect to such a distinction was considered by the Full Federal Court in Lambe v Director-General of Social Services (1981) 57 FLR 262. The question was whether a single mother in receipt of a supporting parent benefit was '... living with ... a man as his wife on a bona fide domestic basis although not legally married to him'. In deciding whether such a relationship existed the Court held that it was necessary to take into account a variety of factors, albeit no factors were spelt out in the statute. The Court held that all facets of the interpersonal relationship of the two persons had to be taken into account. Importantly (at 271): '... the question of the financial support which [the man] provides is an important although not necessarily crucial consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterizing, as required by the definition, the nature of the relationship ...'. 38 The same statutory formula was considered by Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128. He applied Lambe and said, inter alia (at 131): 'Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.' 39 The criterion of marital relationship was considered O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. The question in that case was whether a woman claiming a sole parent's pension was 'a married person ... living separately and apart from her spouse'. Having separated from her husband she had returned home as a matter of convenience and because of his assistance in caring for their disabled child. O'Loughlin J referred to Lambe and Lynam . He endorsed the observations of Fitzgerald J quoted earlier. He said (at 173): '... it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.'
Case: Lynam v Director-General of Social Security (1983) 52 ALR 128
Outcome: cited
The same statutory formula was considered by Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128. He applied Lambe and said, inter alia (at 131): 'Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.' 39 The criterion of marital relationship was considered O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. The question in that case was whether a woman claiming a sole parent's pension was 'a married person ... living separately and apart from her spouse'. Having separated from her husband she had returned home as a matter of convenience and because of his assistance in caring for their disabled child. O'Loughlin J referred to Lambe and Lynam . He endorsed the observations of Fitzgerald J quoted earlier. He said (at 173): '... it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.'
Case: Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Outcome: cited
The criterion of marital relationship was considered O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. The question in that case was whether a woman claiming a sole parent's pension was 'a married person ... living separately and apart from her spouse'. Having separated from her husband she had returned home as a matter of convenience and because of his assistance in caring for their disabled child. O'Loughlin J referred to Lambe and Lynam . He endorsed the observations of Fitzgerald J quoted earlier. He said (at 173): '... it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.'
Case: Cadman v Secretary, Department of Social Security (1993) 31 ALD 486
Outcome: cited
The Social Security and Veterans Affairs Amendment Legislation Act (No 3) 1989 (Cth) amended the Social Services Act 1947 by introducing the concept of a person 'living with the other person in a marriage-like relationship' (new s 43A(6)). The assessment of such a relationship required consideration of the same factors that apply today (new s 3A). In Cadman v Secretary, Department of Society Security (1993) 31 ALD 486, Neaves J noted that the Tribunal under appeal had applied the new criteria even though it was dealing with a case to which the old test applied. That was the test of 'living with a man as his wife on a bona fide domestic basis although not legally married to him'. However, his Honour held, each of the listed matters considered under the new s 3A of the former Act was as relevant to that task as it was to the test of a marriage-like relationship (at 490). This merely illustrates the similarities of the kind of decision-making which is required under each of the statutory formulae and, to that extent, the continuing utility of the older authorities. 42 The Social Security (No Budget Measures) Legislation Amendment Act 1995 (Cth) deleted the requirement that a marriage-like relationship required the parties to it to be 'living' together and substituted the term 'has a relationship with a person'. The Explanatory Memorandum to the Bill stated that the changes were designed to ensure that sole parent pensions would not be paid to couples only temporarily living apart. But in a useful commentary on the provisions Sutherland P, Annotations to the Social Security Act 1991 (5 th ed, Federation Press, 1998) states, correctly in my view, (at 12-13): 'In fact the way the amendments are framed means that they have a wider effect: firstly, they will apply to all payments, not just sole parent pension; and secondly, they will have a relevant effect on the initial issue as to whether a "marriage-like relationship" exists.' 43 When the 'marriage-like relationship' provisions were first inserted in the Social Services Act 1947 similar provisions were introduced into the Veterans Entitlements Act 1986 (Cth), they being ss 5E(2) and 11A . The latter section sets out criteria for determining the existence of a marriage-like relationship for determining whether a person is a member of a 'couple' under s 5E(2). The criteria are the same as those in the Social Security Act see generally Creyke R and Sutherland P, Veterans' Entitlements Law (Federation Press, 2000) at 168-172.
Case: Re: Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Outcome: cited
The Tribunal's general conclusion was that (at [45]): '... the weight of evidence supports the finding that at the relevant time Ms Pelka was in a marriage-like relationship....' This conclusion did not proceed, as one might have expected, from a weighing of the various factors against each other. It is plain that there were matters pointing in different directions. A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed see Garner (supra). The Tribunal quoted a passage from a decision of the Tribunal in Re: Secretary, Department of Family and Community Services and WAP [2000] AATA 7. It is not clear however from the reasons how it applied the non-exhaustive approach set out in the passage which it quoted.
Case: AFP Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016
Outcome: cited
am bound to follow matters of principle enunciated by the Full Court. In that regard, it may be, as Buchanan J highlights in the following passage from his judgment in McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at 597, [22] , that there is a difference in opinion at intermediate appellate level as to whether, for the purpose of satisfying a condition precedent to the awarding of indemnity costs and as an alternative to "imprudent", the rejection of an offer of compromise should be able to be described as "unreasonable" or "plainly unreasonable": In Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 ( Dukemaster) Sundberg and Emmett JJ said, in a case like the present where O 23 r 11 did not apply because an applicant had been wholly unsuccessful, that an applicant for a more generous award of costs than party-party costs 'must show that the rejection of the offer was imprudent or plainly unreasonable' (see at [7]). There has been doubt expressed about the soundness of the statement in Dukemaster that rejection of an offer, if unreasonable, must be 'plainly unreasonable' in the light of the earlier judgment of a Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] [218], to which Wilcox J also referred in Coshott (see Seven Network Limited v News Limited [2007] FCA 1489 at [59] [62]). In the earlier of the Full Court authorities, Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432-433, [218] , the point was made that the conduct of an offeree need not be "plainly unreasonable" in order to warrant the ordering of indemnity costs because "To adopt an especially high standard of unreasonableness would operate as a fetter on the discretion to award indemnity costs and diminish the effectiveness of the Calderbank offer as an incentive to settlement." I respectfully agree and, for that reason, would choose to follow the earlier Full Court authority were that to be critical to the resolution of the costs application. It is not though because in both Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 and Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 the alternative of imprudent rejection was acknowledged. Like Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) and, as his Honour noted (at [22]), like Heerey J in AFP Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016 at [24] [25], it is sufficient to assess whether the rejection of any of the offers was, "imprudent". That basis of assessment accords with the exemplar given by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited , which I have already noted, whose judgment, as Heerey J acknowledged in AFP Properties (ibid), is the locus classicus on the subject.
Case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121
Outcome: considered
respect of each of the offers upon which Flottweg relied, Olivaylle submitted that, even if it were a necessary conclusion flowing from my dismissal of the application that it was worse off than the position offered by those letters, there was no presumption flowing from this that costs taxed on an indemnity basis must be awarded. The importance afforded by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77 at 98, [88] to "sufficient particularity" in relation to an explanation for an offer and "inevitability of failure" was stressed. So, too, was stressed the need to remind myself that it was for Flottweg as offeror to show that the conduct of Olivaylle as offeree in rejecting any "Calderbank" offer was unreasonable, the application by Weinberg J in Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [35] of the Full Court's statement to this effect in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] [218] being cited in support.
Case: Australian and International Pilots Association v QANTAS Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392
Outcome: considered
Australian and International Pilots Association v QANTAS Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at 396 Tracey J remarked: statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission (Vic) [1939] VLR 284 at 297-8; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415. Here, a contrary legislative intention is evident in relation to any operation O 23 r 11(6) might otherwise have with respect to past events. Like Kenny J in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No 2) [2008] FCA 1805 , I consider that such a conclusion is dictated by s 12(2)(b) of the Legislative Instruments Act . I also consider that s 12(2)(a) of the Legislative Instruments Act provides additional support for that view in that, prior to the making of the amendment to the rules, there existed a right to the exercise of a discretion with respect to the awarding of costs unfettered by any such prima facie presumption.
Case: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 244
Outcome: cited
power to award costs is conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). The creation of this Court as a superior court of record and one of both law and equity by ss 5(1) and 5(2) of that Act may mean that it is not strictly correct to regard s 43 just as a source of the Court's power to award costs. That is because the courts of chancery, in contrast to those of the common law, had from medieval times regarded themselves as possessed of an inherent power to award costs: Dal Pont GE, The Law of Costs (2 nd ed, Butterworths, 2009) at [6.2]. The jurisdiction of the common law courts to award costs is statutory, having its origins in the Statute of Gloucester 1278 (Eng): Dal Pont, ibid. When the separate origins of the power to award costs and that this Court is one of law and equity are recalled, it can be seen that s 43 of the Federal Court of Australia Act is in part a source of power but is in part also declaratory. Such considerations led the Full Court in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 at 229 to state that s 43 "complements the jurisdiction obtained by the Court as a court of equity".
Case: Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1
Outcome: cited
am bound to follow matters of principle enunciated by the Full Court. In that regard, it may be, as Buchanan J highlights in the following passage from his judgment in McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at 597, [22] , that there is a difference in opinion at intermediate appellate level as to whether, for the purpose of satisfying a condition precedent to the awarding of indemnity costs and as an alternative to "imprudent", the rejection of an offer of compromise should be able to be described as "unreasonable" or "plainly unreasonable": In Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 ( Dukemaster) Sundberg and Emmett JJ said, in a case like the present where O 23 r 11 did not apply because an applicant had been wholly unsuccessful, that an applicant for a more generous award of costs than party-party costs 'must show that the rejection of the offer was imprudent or plainly unreasonable' (see at [7]). There has been doubt expressed about the soundness of the statement in Dukemaster that rejection of an offer, if unreasonable, must be 'plainly unreasonable' in the light of the earlier judgment of a Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] [218], to which Wilcox J also referred in Coshott (see Seven Network Limited v News Limited [2007] FCA 1489 at [59] [62]). In the earlier of the Full Court authorities, Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432-433, [218] , the point was made that the conduct of an offeree need not be "plainly unreasonable" in order to warrant the ordering of indemnity costs because "To adopt an especially high standard of unreasonableness would operate as a fetter on the discretion to award indemnity costs and diminish the effectiveness of the Calderbank offer as an incentive to settlement." I respectfully agree and, for that reason, would choose to follow the earlier Full Court authority were that to be critical to the resolution of the costs application. It is not though because in both Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 and Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 the alternative of imprudent rejection was acknowledged. Like Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) and, as his Honour noted (at [22]), like Heerey J in AFP Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016 at [24] [25], it is sufficient to assess whether the rejection of any of the offers was, "imprudent". That basis of assessment accords with the exemplar given by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited , which I have already noted, whose judgment, as Heerey J acknowledged in AFP Properties (ibid), is the locus classicus on the subject.
Case: McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591
Outcome: considered
am bound to follow matters of principle enunciated by the Full Court. In that regard, it may be, as Buchanan J highlights in the following passage from his judgment in McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 ; (2007) 164 FCR 591 at 597, [22] , that there is a difference in opinion at intermediate appellate level as to whether, for the purpose of satisfying a condition precedent to the awarding of indemnity costs and as an alternative to "imprudent", the rejection of an offer of compromise should be able to be described as "unreasonable" or "plainly unreasonable": In Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 ( Dukemaster) Sundberg and Emmett JJ said, in a case like the present where O 23 r 11 did not apply because an applicant had been wholly unsuccessful, that an applicant for a more generous award of costs than party-party costs 'must show that the rejection of the offer was imprudent or plainly unreasonable' (see at [7]). There has been doubt expressed about the soundness of the statement in Dukemaster that rejection of an offer, if unreasonable, must be 'plainly unreasonable' in the light of the earlier judgment of a Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] [218], to which Wilcox J also referred in Coshott (see Seven Network Limited v News Limited [2007] FCA 1489 at [59] [62]). In the earlier of the Full Court authorities, Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at 432-433, [218] , the point was made that the conduct of an offeree need not be "plainly unreasonable" in order to warrant the ordering of indemnity costs because "To adopt an especially high standard of unreasonableness would operate as a fetter on the discretion to award indemnity costs and diminish the effectiveness of the Calderbank offer as an incentive to settlement." I respectfully agree and, for that reason, would choose to follow the earlier Full Court authority were that to be critical to the resolution of the costs application. It is not though because in both Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 and Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 the alternative of imprudent rejection was acknowledged. Like Buchanan J in McDonald v Parnell Laboratories (Aust) (No 2) and, as his Honour noted (at [22]), like Heerey J in AFP Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 3) [2007] FCA 2016 at [24] [25], it is sufficient to assess whether the rejection of any of the offers was, "imprudent". That basis of assessment accords with the exemplar given by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited , which I have already noted, whose judgment, as Heerey J acknowledged in AFP Properties (ibid), is the locus classicus on the subject.