mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 
Outcome: referred to
KAL contends that even if the relevant portions of the document are properly the subject of the claim for legal professional privilege, that privilege has been waived in accordance with the principle stated by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. 16 The evidence before me on the hearing was an affidavit of Mr Scott Gregson, the General Manager of the Enforcement Branch of the ACCC. His affidavit deals with the claims of legal professional privilege and public interest immunity. 70 The principle of implied waiver, under which a party who would otherwise be entitled to the benefit of legal professional privilege was stated by the High Court in Mann v Carnell at [29]. 71 In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 , a Full Court, after referring to Mann v Carnell and other authorities said at [52]: [52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.
Case: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 
Outcome: referred to
Mr Gageler SC referred me to the line of authorities commencing with Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 , referred to by Gibbs CJ in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. Gibbs CJ there said that the authorities establish that when a Minister is entrusted with administrative functions he or she may in general act through a duly authorised officer of the department.
Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: applied
The principles of public interest immunity to be gleaned from the decisions of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 , were set out by Lockhart J in Zarro at 44-46.
Case: Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502
Outcome: applied
The principles applicable to legal professional privilege as a rule of substantive law were comprehensively reviewed by McColl JA in Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at [72]ff. 55 The following relevant propositions emerge from her Honour's review of English and Australian authority: &#8226; Once it is established that a legal practitioner was acting in the requisite capacity, a confidential communication will attract privilege even if it contains extraneous matter, as long as it was prepared for the dominant purpose of giving legal advice. &#8226; Legal advice is not confined to telling the client the law; it may include advice as to what should prudently and sensibly be done in the relevant legal context. &#8226; What matters is whether the lawyers are being asked qua lawyers to provide legal advice. &#8226; The presence of other matter may raise a question of the purpose for which the document was brought into existence but this will be a question of fact. &#8226; The privilege should not be undermined by an overly narrow or technical approach to the identification of the relevant advice.
Case: Zarro v Australian Securities Commission (1992) 36 FCR 40 
Outcome: applied
It is well-established that the Court may inspect the documents in question to ascertain whether any doubts about the validity of the claim are made good by an inspection of the documents: see eg Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61. 59 The parties agreed that I may inspect the documents. I have done so and am satisfied that the claim for the redacted portion of attachment 1 is supported. 60 In my view, the claim for legal professional privilege for attachment 2 is not supported, either by the principles to which I have referred or by an inspection of the document. 62 The principles of public interest immunity to be gleaned from the decisions of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 , were set out by Lockhart J in Zarro at 44-46.
Case: Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398
Outcome: cited
Counsel for the third respondent submitted that the duties which were owed by a solicitor were ascertained by reference to the scope of the retainer. Counsel relied in particular upon the following observations of Sheller JA in Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 at 418: 'The solicitor's duty is found in the terms of the retainer and the ambit of any additional assumed responsibility relied upon.' 21 Further, counsel for the third respondent also relied upon observations in a number of authorities in support of a submission that, unless specifically retained to do so, a solicitor was not responsible for giving financial advice, advising about investments or, when retained to advise on or prepare a document, the commercial merits or wisdom of the underlying transaction.
Case: Midland Bank Trust Co Ltd v Hett, Stubbs &amp; Kemp (A Firm) [1979] 1 Ch 384
Outcome: cited
The submissions of counsel for the applicants are to be accepted. The scope of any retainer and the scope of the implied duty to carry out the retainer with reasonable care, depends upon the facts peculiar to the relationship between the solicitor and the client in each case. As Oliver J said in Midland Bank Trust Co Ltd v Hett, Stubbs &amp; Kemp (A Firm) [1979] 1 Ch 384 at 402: 'There is no such thing as a general retainer in that sense. The expression "my solicitor" is as meaningless as the expression "my tailor" or "my bookmaker" in establishing any general duty apart from that arising out of a particular matter in which his services are retained.'
Case: Dalleagles v Australian Securities Commission (1991) 4 WAR 325
Outcome: cited
The applicants' proposition is that a solicitor, acting reasonably, would obtain instructions directly from a client, when that solicitor is retained by an agent of the client, and the carrying out of retainer has the propensity to benefit that agent. In my view, it cannot be said that the applicants' proposition is so untenable as to result in their application being summarily terminated. In my view, it is arguable that there was a duty on the third respondent to obtain instructions directly from the applicants, as an incident of the implied duty to carry out his retainer with reasonable care and skill. Further, in my view, it is also arguable that, in the circumstances of this case, had that duty been carried out, the advice duties pleaded at pars 32.3, 32.4 and 32.5 could also have arisen ( Dalleagles v Australian Securities Commission (1991) 4 WAR 325 at 332-333; Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 574). It follows that I do not accept that the claim against the third respondent should be struck out on the grounds that no reasonable cause of action is disclosed, or that the claim is frivolous or vexatious.
Case: Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539
Outcome: cited
The applicants' proposition is that a solicitor, acting reasonably, would obtain instructions directly from a client, when that solicitor is retained by an agent of the client, and the carrying out of retainer has the propensity to benefit that agent. In my view, it cannot be said that the applicants' proposition is so untenable as to result in their application being summarily terminated. In my view, it is arguable that there was a duty on the third respondent to obtain instructions directly from the applicants, as an incident of the implied duty to carry out his retainer with reasonable care and skill. Further, in my view, it is also arguable that, in the circumstances of this case, had that duty been carried out, the advice duties pleaded at pars 32.3, 32.4 and 32.5 could also have arisen ( Dalleagles v Australian Securities Commission (1991) 4 WAR 325 at 332-333; Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 574). It follows that I do not accept that the claim against the third respondent should be struck out on the grounds that no reasonable cause of action is disclosed, or that the claim is frivolous or vexatious.
Case: Australian Competition &amp; Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439
Outcome: applied
In my view, the following observations of Dowsett J at [303] in Australian Competition &amp; Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 are relevant in this context: 'It is quite possible that the act of a natural person respondent on behalf of a corporation will constitute a contravention of the Act by that corporation, and yet the natural person respondent will be found not to have been knowingly concerned in that contravention. In the case of representations as to existing facts, this is because it is not necessary to show that the respondent corporation knew of the misleading nature of the statement in question, but knowing involvement predicates such knowledge on the part of the relevant natural person. The matter is even more complex in the case of representations as to future matters. A representation on behalf of a corporation will constitute a contravention if the corporation fails to show reasonable grounds for it. However a natural person respondent bears no onus of proof. It will be necessary for ACCC to demonstrate that such a person: &#61863; knew that the representation was made; and either: &#61863; knew that it was misleading; or &#61863; knew that the corporation had no reasonable grounds for it.' 35 The applicants have in par 37 of the statement of claim only relied upon the making by Dultona of future representations as the conduct comprising the breach of the TP Act. There is no pleading in par 37 of there being any absence of reasonable grounds for Dultona making the representations as to the future.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
There is no plea in par 38 that the third respondent knew of the future representations and, also, importantly there is no plea that the third respondent knew that there were no reasonable grounds for the making of those representations. The absence of pleas to that effect are fatal to any attempt to plead a claim against the third respondent based on an allegation that the third respondent was knowingly concerned in, or a party to, the misleading or deceptive conduct of Dultona ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670). 37 It follows that par 37 and par 38 of the statement of claim will be struck out as disclosing no reasonable cause of action, but I will give the applicants leave to amend the statement of claim. The third respondent's motion will otherwise be dismissed. I will hear the parties on the question of costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 7 April 2006 Counsel for the Applicants: Ms C H Thompson Solicitor for the Applicants: Marks &amp; Sands Counsel for the Third Respondent: Mr G J Pynt Solicitor for the Third Respondent: Pynt &amp; Partners Date of Hearing: 15 November 2005 Date of Judgment: 7 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/385.html
Case: Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Limited [2005] FCA 10 
Outcome: referred to
order striking out pleadings does not finally determine the rights of the parties. The proceeding remains extant (see Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Limited [2005] FCA 1071) and a party is ordinarily given an opportunity to re-plead in accordance with the Rules ( Australian Competition and Consumer Commission at [95]). (ii) Interlocutory orders do not found an issue estoppel
Case: Bond v Barry (2008) 173 FCR 106 
Outcome: referred to
Ford was considered by a Full Court of this Court in Bond v Barry (2008) 173 FCR 106 (Sundberg, Jacobson and Lander JJ) but declined to express a view on which of the competing views in Jefferson Ford of the application of s 31A of the Act was correct (at [74]). (ii) Application of the general principles to this proceeding
Case: Bowes v Fehlberg &amp; Ors (No 2) [2001] TASSC 24
Outcome: cited
orders, by nature, lack finality. It follows, therefore, that they are insufficient to create an issue estoppel (see Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 ; cited with approval in Bowes v Fehlberg &amp; Ors (No 2) [2001] TASSC 24 at [22] and by the New South Wales Court of Appeal in Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51. (iii) The facts and law the subject of the 2007 notice of motion were not conducted on a final basis
Case: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434
Outcome: referred to
observations were cited with approval by a Full Court of this Court in Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443.
Case: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 
Outcome: referred to
it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R &#167;90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.
Case: D A Christie Pty Ltd v Baker (1996) 2 VR 582
Outcome: cited
response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy.
Case: Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: considered
order striking out a statement of claim on the ground that it fails to disclose a reasonable cause of action is interlocutory and not a final order ( Jones v Insole (1891) 64 LT 703 , a decision of the English Court of Appeal; cited with approval by Taylor J (with whom Owen J agreed) in Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440, where his Honour said: The same view [ie that the order was interlocutory] was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole and of an order dismissing an action as frivolous and vexatious in In re Page . (Citations omitted) In this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.
Case: Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 
Outcome: referred to
respect of applications for summary judgment under s 31A of the Act, the onus to demonstrate that the proceedings do not have reasonable prospects of success rests with the party seeking summary judgment. In Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] and [44] Rares J, quoting from Latham CJ in Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 442, likened the standard under s 31A of the Act to the common law test for determining whether a jury properly instructed could reach a verdict for a plaintiff: [T]here must be a real issue of fact to be decided. And if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.
Case: Jones v Insole (1891) 64 LT 703 
Outcome: referred to
order striking out a statement of claim on the ground that it fails to disclose a reasonable cause of action is interlocutory and not a final order ( Jones v Insole (1891) 64 LT 703 , a decision of the English Court of Appeal; cited with approval by Taylor J (with whom Owen J agreed) in Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440, where his Honour said: The same view [ie that the order was interlocutory] was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole and of an order dismissing an action as frivolous and vexatious in In re Page . (Citations omitted) In this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.
Case: Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 
Outcome: referred to
example of an abuse of process is where interlocutory orders, though not truly able to found an issue estoppel, may be capable of finally determining an issue of fact or law if 'it is reasonable to regard the earlier decision as a final determination of the issue' ( Re Martin &amp; Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 per Cooper J at 443) or the parties have conducted the litigation 'upon the footing that this part of the proceedings is to be then determined, to that extent, finally' ( Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 per Beaumont J (with whom Jenkinson and Lehane JJ agreed)) or 'a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination' ( Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [42]).
Case: Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541
Outcome: referred to
this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.
Case: Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51 
Outcome: cited
orders, by nature, lack finality. It follows, therefore, that they are insufficient to create an issue estoppel (see Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 ; cited with approval in Bowes v Fehlberg &amp; Ors (No 2) [2001] TASSC 24 at [22] and by the New South Wales Court of Appeal in Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51. (iii) The facts and law the subject of the 2007 notice of motion were not conducted on a final basis
Case: Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98
Outcome: referred to
example of an abuse of process is where interlocutory orders, though not truly able to found an issue estoppel, may be capable of finally determining an issue of fact or law if 'it is reasonable to regard the earlier decision as a final determination of the issue' ( Re Martin &amp; Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 per Cooper J at 443) or the parties have conducted the litigation 'upon the footing that this part of the proceedings is to be then determined, to that extent, finally' ( Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 per Beaumont J (with whom Jenkinson and Lehane JJ agreed)) or 'a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination' ( Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [42]).