mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Day v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
Section 31A(2) of the Act represents a deliberate step by the Parliament to modify the position which hitherto prevailed in relation to summary judgment applications and which is exemplified in terms of principle in authorities such as Day v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. Thus s 31A(2) provides that the court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; (b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Section 31A(2) of the Act represents a deliberate step by the Parliament to modify the position which hitherto prevailed in relation to summary judgment applications and which is exemplified in terms of principle in authorities such as Day v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. Thus s 31A(2) provides that the court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; (b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441
Outcome: applied
It might also be noted that by s 351(7) , the Minister is empowered to make, by way of substitution, a more favourable decision, but that he does not have a duty to consider whether to exercise his power under subs (1) in respect of any decision, whether he was requested to do so by an applicant or another person, or in any other circumstances. That particular statutory provision and its analogues have the necessary consequence in relation to an application for a constitutional writ, in which it is sought to compel Ministerial consideration, that there is no statutory duty so to do and, hence, a constitutional writ will not go. See in that regard the High Court's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441-48. 24 That in itself is enough to dispose of the proceeding on the basis of an absence of a reasonable prospect of success; i.e. there is no hope of establishing jurisdiction to entertain the claim in respect of relief relating to compelling the Minister to act under s 351. It is desirable though, in the circumstances, to reflect upon other aspects of the claim, even assuming that there were jurisdiction. 25 In their written submission the Respondents, apart from the primary submission which is that the Minister is under no obligation to consider a request, also in an elaborate way chart by way of reference to directions that have been given by the Minister pursuant to his administration of the Act and in relation to s 351, highlight how it is, that a particular course was taken within the Department to proceed as was done once both a request for withdrawal had been received and once there was an awareness of a continuing migration matter litigation. It suffices to note that there is a compelling basis for the submission that the course taken was one that was within power. The detail of that is set out in the submission which is on the court file and it is not necessary to elaborate on it.
Case: Northern Territory v Mengel (1995) 185 CLR 307
Outcome: applied
It is desirable though to elaborate rather more on what the Respondents, with respect, rightly apprehend to be a claim in the nature of damages for misfeasance in public office. Like the Respondents, I too would characterise the second of the grounds in the application as one for damages in respect of that asserted tort. The leading authority in respect of that tort is Northern Territory v Mengel (1995) 185 CLR 307. Damages are recoverable by an individual in respect of the tort of misfeasance in public office, where that individual has suffered loss by reason of an action taken by the holder of a public office, if, and it is a significant if, that officer has acted maliciously, or knew that the action was beyond power and likely to harm that individual. 27 In this sense misfeasance in public office is a "deliberate tort". The elements of the course of action were particularly identified by Deane J in his reasons for judgment in Mengel at page 370, in the following way: (a) there was an invalid or unauthorised act; (b) that act was done maliciously; (c) it was done by a public officer; (d) it was done in the apparent discharge of that officer's duties; (e) the act caused loss or damage. 28 It is also useful to recall an observation made by Brennan J in Mengel at page 357 wherein his Honour observed that the tort consisted of: "A purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby the loss is caused to the plaintiff."
Case: James v Commonwealth [1939] HCA 9 ; (1939) 62 CLR 339
Outcome: cited
A further observation ought also to be made in respect of so much of that damages claim as would seek to make the Commonwealth vicariously liable in respect of the first respondent's action or inaction, as alleged. Obviously enough, the utterly hopeless quality of the damages claim against the First Respondent has a necessary consequence, even assuming that it were possible to make the Commonwealth vicariously liable. That is an assumption though which, in any event, would be wrong in law to make. The present state of authority suggests strongly that, in the ordinary course of events, it is not possible to make the relevant body politic, in this case the Commonwealth, vicariously liable for that tort of misfeasance committed by an officer, see James v Commonwealth [1939] HCA 9 ; (1939) 62 CLR 339 at 359-60 and RACZ v Home Office [1994] 2 AC 45.
Case: RACZ v Home Office [1994] 2 AC 45
Outcome: cited
A further observation ought also to be made in respect of so much of that damages claim as would seek to make the Commonwealth vicariously liable in respect of the first respondent's action or inaction, as alleged. Obviously enough, the utterly hopeless quality of the damages claim against the First Respondent has a necessary consequence, even assuming that it were possible to make the Commonwealth vicariously liable. That is an assumption though which, in any event, would be wrong in law to make. The present state of authority suggests strongly that, in the ordinary course of events, it is not possible to make the relevant body politic, in this case the Commonwealth, vicariously liable for that tort of misfeasance committed by an officer, see James v Commonwealth [1939] HCA 9 ; (1939) 62 CLR 339 at 359-60 and RACZ v Home Office [1994] 2 AC 45.
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
The Court's jurisdiction under s 44(1) is limited to pure questions of law: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 , at [11]-[16]; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97ALD 593 at [35]. 10 Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] . 11 Any questions of law identified by the applicant must relate to the decision under appeal in such a way that a favourable answer to the question will disclose an error affecting the Tribunal's decision: Birdseye at [23] and [28]. 12 During argument counsel for the applicant effectively abandoned the stated questions of law and said that the error of law relied upon was the failure of the Tribunal to take into account the applicant's explanation for failing to comply with his obligations under s 161 of the Income Tax Assessment Act 1936 (Cth) ("the ITAA Act ") as relevant to the exercise of the discretion under s 251K , whether to cancel the applicant's registration as a tax agent. 13 The two issues for the Tribunal were: (a) whether the applicant had been convicted of serious taxation offences, so that the applicant is not a fit and proper person in the relevant sense; and (b) whether the registration of the applicant as a tax agent should be cancelled under s 251K(2) of the ITAA Act because of those offences, the applicant's history of non-compliance of income tax returns, including his non-lodgement of income tax returns since 2000.
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: cited
The grounds are formulated as four separate questions concerning matters of law. However, the competency of the appeal depends on the identification of questions which are properly characterised as questions of law, as the subject of the appeal: Price Street Professional Centre , at [22]; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [14] .
Case: Dent v Australian Electoral Commissioner [2008] FCAFC 111
Outcome: cited
The discretion to extend time to institute an appeal is not expressly confined. Some relevant considerations are to be found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). These have been applied to applications under s 44: Peczalski v Comcare (1999) 58 ALD 697 at [19]; Dent v Australian Electoral Commissioner [2008] FCAFC 111 at [48] . They include relevantly for present purposes the following: (a) The application should not be granted unless the Court is satisfied that it is proper so to do. The prescribed period is not to be ignored: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Although it is not an essential pre condition for a favourable exercise of the discretion that the applicant show an acceptable explanation for the delay, it is to be expected that such an explanation will normally be given: Comcover v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441. (b) The merits of the substantial application are properly to be taken into account, considering whether an extension of time should be granted.
Case: Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458
Outcome: cited
The Court has a discretion to extend time. That discretion is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson [1990] HCA 30 ; (1990) 64 ALJR 458 at 459.
Case: HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291
Outcome: cited
Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] .
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: cited
The discretion to extend time to institute an appeal is not expressly confined. Some relevant considerations are to be found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). These have been applied to applications under s 44: Peczalski v Comcare (1999) 58 ALD 697 at [19]; Dent v Australian Electoral Commissioner [2008] FCAFC 111 at [48] . They include relevantly for present purposes the following: (a) The application should not be granted unless the Court is satisfied that it is proper so to do. The prescribed period is not to be ignored: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Although it is not an essential pre condition for a favourable exercise of the discretion that the applicant show an acceptable explanation for the delay, it is to be expected that such an explanation will normally be given: Comcover v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441. (b) The merits of the substantial application are properly to be taken into account, considering whether an extension of time should be granted.
Case: Peczalski v Comcare (1999) 58 ALD 697
Outcome: cited
The discretion to extend time to institute an appeal is not expressly confined. Some relevant considerations are to be found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). These have been applied to applications under s 44: Peczalski v Comcare (1999) 58 ALD 697 at [19]; Dent v Australian Electoral Commissioner [2008] FCAFC 111 at [48] . They include relevantly for present purposes the following: (a) The application should not be granted unless the Court is satisfied that it is proper so to do. The prescribed period is not to be ignored: Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Although it is not an essential pre condition for a favourable exercise of the discretion that the applicant show an acceptable explanation for the delay, it is to be expected that such an explanation will normally be given: Comcover v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441. (b) The merits of the substantial application are properly to be taken into account, considering whether an extension of time should be granted.
Case: Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97ALD 593
Outcome: cited
The Court's jurisdiction under s 44(1) is limited to pure questions of law: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 , at [11]-[16]; Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97ALD 593 at [35]. 9 The grounds are formulated as four separate questions concerning matters of law. However, the competency of the appeal depends on the identification of questions which are properly characterised as questions of law, as the subject of the appeal: Price Street Professional Centre , at [22]; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [14] . 10 Whether a decision gives rise to a question of law that will support an appeal under s 44(1) requires consideration of how the decision was arrived at and the point that the appellant seeks to raise: Price Street Professional Centre at [25]. The Court must consider the question sought to be raised and the grounds relied upon: see Birdseye at [18]; Price Street Professional Centre at [40]. The grounds required to be specified in the notice of appeal "are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks": HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34 ; (2006) 149 FCR 291 at [6] .
Case: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Ltd v Carey (No 15) [2007] FCA 544
Outcome: cited
Hotchkin Hanley did not respond to ASIC's letter of 8 March 2007. Ferrier Hodgson responded but did not pursue its previous concerns. Mr Carey and Ms Carey, through their solicitors Mony de Kerloy, wrote to ASIC on 9 March 2007 asserting that the Westpoint documents might contain legally privileged information and that to obtain appropriate advice their clients required funding from moneys held by Healthcare Properties Pty Ltd (Healthcare). ASIC rejected this contention on 13 March 2007. An application for release of funds from Healthcare was refused in my judgment on 17 April 2007: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Ltd v Carey (No 15) [2007] FCA 544. 19 ASIC's release does not extend to copies of what is known as the Redchime server. This is on the basis that the materials obtained from that server were not produced to ASIC by KordaMentha in their capacity as privately appointed receivers and managers to Westpoint Corporation. The proposed release to the liquidators is limited to the hardcopy documents. ASIC released an image of the Westpoint server and associated computers in June 2006. 20 On 27 April 2007 ASIC filed an application under s 477(6) of the Corporations Act 2001 (Cth) seeking orders that the liquidators of Westpoint Corporation be permitted to inspect and obtain copies of the books of the company held by ASIC subject to certain conditions relating to third party interests which were set out in the application.
Case: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Outcome: cited
applicants' counsel told the Court that nowhere in the statements of issues and contentions of any of the parties is there a reference to either the Act or the section in question. There is no doubt that a Notice to Produce may be set aside if the documents sought by it lack apparent relevance to the proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102-103; Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6] . In this case, the documents sought have been discovered and so are prima facie relevant. Other than the assertion from the bar table that the Act and section in question are not to be found in the statements of issues and contentions, no attempt has been made by the applicants to demonstrate that the documents are not relevant. That assertion is at any rate of limited assistance: the proceeding is still at an interlocutory stage and submissions on the substantive issues between the parties are yet to be made. The tentative submission of the applicants that document 1434 is not relevant is insufficient to displace the document's prima facie relevance.
Case: Seven Network Limited v News Limited (No 11) [2006] FCA 174
Outcome: cited
applicants' counsel told the Court that nowhere in the statements of issues and contentions of any of the parties is there a reference to either the Act or the section in question. There is no doubt that a Notice to Produce may be set aside if the documents sought by it lack apparent relevance to the proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102-103; Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6] . In this case, the documents sought have been discovered and so are prima facie relevant. Other than the assertion from the bar table that the Act and section in question are not to be found in the statements of issues and contentions, no attempt has been made by the applicants to demonstrate that the documents are not relevant. That assertion is at any rate of limited assistance: the proceeding is still at an interlocutory stage and submissions on the substantive issues between the parties are yet to be made. The tentative submission of the applicants that document 1434 is not relevant is insufficient to displace the document's prima facie relevance.
Case: Apple v Wily [2002] NSWSC 855
Outcome: cited
was not argued that the applicant fell within the core definition of "client" and nor could it be, for as Barrett J said in Apple v Wily [2002] NSWSC 855 at [11] , in its ordinary signification, must therefore be regarded as referring to a person who, in respect of some legal matter within the scope of professional services normally provided by lawyers, has, with the consent of a lawyer, come to stand in a relationship of trust and confidence to the lawyer entailing duties of the lawyer to promote the person's interests, to protect the person's rights and to respect the person's confidences." The core meaning of the term "client" is expanded upon in s 117: see Apple v Wily [2002] NSWSC 855 at [7] . The definition is a non-exhaustive list of categories, all but one of which are not presently relevant. Paragraph (b) is "an employee or agent of a client" . It follows that if the applicants can show that, for the purpose of maintaining privilege over the Bankers Trust documents, they are the agents of Bankers Trust, then they are entitled to assert that privilege on Bankers Trust's behalf. But no evidence was led to the effect that the applicants were Bankers Trust's agents. There was a suggestion by the applicants that they were bailees of the documents and could assert Bankers Trust's privilege in that capacity. This was met by a submission from the respondent that because the documents were sent by facsimile to the applicants there could be no bailment. This submission misunderstands the subject matter of legal professional privilege. The privilege attaches to communications and not the pieces of paper and other media on which they are recorded. A communication is essentially information and the law knows no concept of the bailment of information. For the same reason, the applicants' bailment suggestion is unsound.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: applied
obligation to prove that a communication is privileged rests with the party asserting privilege: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents: National Crime Authority v S (1991) 29 FCR 203 at 211. That is especially so where, as in this case, the assertion in the affidavit wrongly describes the privilege as belonging to the applicants rather than to Bankers Trust. It is understandable that the respondent is suspicious of documents prepared by senior in-house counsel for the board of directors. In contemporary companies, senior lawyers increasingly often play management roles which will sometimes involve them creating documents that are not for the dominant purpose of providing legal advice. The descriptions provided by the appellant of the Tiffen documents, supplemented by the evidence of Mr Schoenberg, do not demonstrate conclusively that the documents are privileged. In such circumstances, often the only possible course of action is for the party claiming privilege to provide the documents to the Court and have the Court determine if the claim can be maintained: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. This is what has occurred in this case. I have been provided by the applicants with copies of the Tiffen documents. Such copies have not, as I understand it, been provided to the respondent. I have reviewed the two documents. It is inappropriate for me to say anything more about the documents than has been said in open Court in evidence and submissions. I should, however, set out my approach to determining whether the documents are privileged.