mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954
Outcome: referred to
The background to the hearings held on 28 and 30 May 2008 and the subsequent course of proceedings in this Court are outlined in my judgment, published today, rejecting SFC's application for declaratory relief against AMOU: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954. 4 Each of the respondents now seeks costs orders against SFC in relation to the interlocutory proceedings: &#8226; AMOU submits that SFC should be ordered to pay AMOU's costs of SFC's application for interlocutory relief and AMOU's motion for an anti-suit injunction; &#8226; The second respondents make a similar submission in relation to their costs of both the application and the motion; and &#8226; AIMPE submits that SFC should pay AIMPE's costs of SFC's application for interlocutory relief. 5 It is common ground that the Court's discretion to award costs conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth) is, for present purposes, constrained by s 824 of the WR Act . Section 824 provides as follows: '(1) A party to a proceeding (including an appeal) in a matter arising under this Act ... must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs. (3) In subsections (1) and (2): costs includes all legal and professional costs and disbursements and expenses of witnesses.'
Case: The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51 ; (1978) 140 CLR 470
Outcome: cited
An application is not commenced ' without reasonable cause ' simply because the applicant's arguments are rejected by the Court: The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51 ; (1978) 140 CLR 470 , at 473, per Gibbs J. However, if the application is ' misconceived ' the position is very likely to be different: Standish v University of Tasmania (1989) 28 IR 129, at 139, per Lockhart J.
Case: Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39
Outcome: cited
the Court will not make, to which I would add maintain, any order which is futile. The material contained in the Order 52B documents, with the exception of the applicant's 1996 tax return, has been very widely disseminated by prominent publication on the front page of the national newspaper. See Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39 at 54 per Mason J; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, at 524 525 per Powell J; Cashman v Ackland [2001] NSWSC 863 at [6] . Unlike the situation in Westpac , here the detail has passed into the public domain. So much can be gauged from a comparison of the article, as it appeared in The Australian (Ex 1) and the relevant Order 52B documents.
Case: Westpac Bowling Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513
Outcome: distinguished
the Court will not make, to which I would add maintain, any order which is futile. The material contained in the Order 52B documents, with the exception of the applicant's 1996 tax return, has been very widely disseminated by prominent publication on the front page of the national newspaper. See Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39 at 54 per Mason J; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, at 524 525 per Powell J; Cashman v Ackland [2001] NSWSC 863 at [6] . Unlike the situation in Westpac , here the detail has passed into the public domain. So much can be gauged from a comparison of the article, as it appeared in The Australian (Ex 1) and the relevant Order 52B documents.
Case: Cashman v Ackland [2001] NSWSC 863
Outcome: cited
the Court will not make, to which I would add maintain, any order which is futile. The material contained in the Order 52B documents, with the exception of the applicant's 1996 tax return, has been very widely disseminated by prominent publication on the front page of the national newspaper. See Commonwealth v John Fairfax &amp; Sons Ltd [1980] HCA 44 ; (1980) 147 CLR 39 at 54 per Mason J; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, at 524 525 per Powell J; Cashman v Ackland [2001] NSWSC 863 at [6] . Unlike the situation in Westpac , here the detail has passed into the public domain. So much can be gauged from a comparison of the article, as it appeared in The Australian (Ex 1) and the relevant Order 52B documents.
Case: Cann's Pty Ltd v Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210
Outcome: cited
The plaintiff submits that the principle to be applied in this case is succinctly extracted by Finkelstein J in the passage highlighted above from the judgment of Dixon J in Fraser Henleins Pty Ltd &amp; Crowther v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 128. That passage is consistent with a series of other decisions concerning the wartime regulations, decided at about the same time, including Vardon v Commonwealth [1943] HCA 30 ; (1943) 67 CLR 434; Cann's Pty Ltd v Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210; and King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184.
Case: Editions Tom Thompson Pty Ltd v Pilley (1997) 148 ALR 146 
Outcome: referred to
The nature, effect, and limit upon directions that may be given pursuant to s 447D have been explained in Editions Tom Thompson Pty Ltd v Pilley (1997) 148 ALR 146 at 151 155; Re Ansett Australia Ltd and Mentha [2002] FCA 2 ; (2002) 188 ALR 186; Re Ansett Australia Ltd (2001) 39 ACSR 355; 19 ACLC 1678 at [58] [69]; and Re Pasminco [2004] FCA 656 ; (2004) 22 ACLC 774; 49 ACSR 470 at [2] [9] and need not be repeated.
Case: King Gee Clothing Co Pty Ltd vThe Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 
Outcome: cited
The plaintiff submits that the principle to be applied in this case is succinctly extracted by Finkelstein J in the passage highlighted above from the judgment of Dixon J in Fraser Henleins Pty Ltd &amp; Crowther v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 128. That passage is consistent with a series of other decisions concerning the wartime regulations, decided at about the same time, including Vardon v Commonwealth [1943] HCA 30 ; (1943) 67 CLR 434; Cann's Pty Ltd v Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210; and King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184.
Case: Re Clynton Court Pty Ltd (subject to a deed of company arrangement); Korda (as joint and several deed administrators of Clynton Court Pty Ltd (subject to a deed of company arrangement v The J Aron Corporation (2005) 53 ACSR 432; (2005) 23 ACLC 710; [2005] FCA 543
Outcome: cited
Counsel for ASIC responded to the argument based upon practical inconvenience by suggesting that interim payments could be authorised, as suggested by Finkelstein J in Stockford (at [30]) or that a certain monetary sum could be fixed on the basis that the administrator should have the right to seek further remuneration at a later meeting (cf Re Daily Telegraph Newspaper Co Limited (1931) 48 WN (NSW) 236). (See also Re Clynton Court Pty Ltd (subject to a deed of company arrangement); Korda (as joint and several deed administrators of Clynton Court Pty Ltd (subject to a deed of company arrangement v The J Aron Corporation (2005) 53 ACSR 432; (2005) 23 ACLC 710; [2005] FCA 543.) ASIC suggested that the convenience of avoiding additional meetings be given little, if any, weight.
Case: Mentha v GE Capital Ltd (1997) 154 ALR 565 
Outcome: referred to
The declaration sought in the alternative is based upon s 21 of the Federal Court of Australia Act 1976 (Cth). The limits to the exercise of that jurisdiction in circumstances such as the present have been explained in Mentha v GE Capital Ltd (1997) 154 ALR 565 at 571 575. It is clear enough that the present constitution of the proceeding is not appropriate for the making of a declaration of right.
Case: Re Ansett Australia Ltd (2001) 39 ACSR 355; (2001) 19 ACLC 1678
Outcome: referred to
The nature, effect, and limit upon directions that may be given pursuant to s 447D have been explained in Editions Tom Thompson Pty Ltd v Pilley (1997) 148 ALR 146 at 151 155; Re Ansett Australia Ltd and Mentha [2002] FCA 2 ; (2002) 188 ALR 186; Re Ansett Australia Ltd (2001) 39 ACSR 355; 19 ACLC 1678 at [58] [69]; and Re Pasminco [2004] FCA 656 ; (2004) 22 ACLC 774; 49 ACSR 470 at [2] [9] and need not be repeated.
Case: Re Ansett Australia Ltd and Mentha [2002] FCA 2 ; (2002) 188 ALR 186
Outcome: referred to
The nature, effect, and limit upon directions that may be given pursuant to s 447D have been explained in Editions Tom Thompson Pty Ltd v Pilley (1997) 148 ALR 146 at 151 155; Re Ansett Australia Ltd and Mentha [2002] FCA 2 ; (2002) 188 ALR 186; Re Ansett Australia Ltd (2001) 39 ACSR 355; 19 ACLC 1678 at [58] [69]; and Re Pasminco [2004] FCA 656 ; (2004) 22 ACLC 774; 49 ACSR 470 at [2] [9] and need not be repeated.
Case: Re Pasminco Ltd (No 2) (2004) 49 ACSR 470; 22 ACLC 774; [2004] FCA 656
Outcome: referred to
The nature, effect, and limit upon directions that may be given pursuant to s 447D have been explained in Editions Tom Thompson Pty Ltd v Pilley (1997) 148 ALR 146 at 151 155; Re Ansett Australia Ltd and Mentha [2002] FCA 2 ; (2002) 188 ALR 186; Re Ansett Australia Ltd (2001) 39 ACSR 355; 19 ACLC 1678 at [58] [69]; and Re Pasminco [2004] FCA 656 ; (2004) 22 ACLC 774; 49 ACSR 470 at [2] [9] and need not be repeated.
Case: Vardon v Commonwealth [1943] HCA 30 ; (1943) 67 CLR 434
Outcome: cited
The plaintiff submits that the principle to be applied in this case is succinctly extracted by Finkelstein J in the passage highlighted above from the judgment of Dixon J in Fraser Henleins Pty Ltd &amp; Crowther v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 128. That passage is consistent with a series of other decisions concerning the wartime regulations, decided at about the same time, including Vardon v Commonwealth [1943] HCA 30 ; (1943) 67 CLR 434; Cann's Pty Ltd v Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210; and King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184.
Case: Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58
Outcome: distinguished
The Williams &amp; Hughes/Hillcrest retainer appears to have been for limited legal services ("[a]dvising and negotiating on behalf of Chris Gurtler in communications with Kosta Patsan and Finance Now Pty Ltd's solicitors"). It described Hillcrest as the "client" for the purposes of the agreement. It envisaged that Hillcrest would give instructions (cl 22). I would simply note in passing that this agreement did not provide Hillcrest with a level of control of the litigation comparable to that had by the litigation funder in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58; for aspects of the terms of which see Fostif Pty Ltd v Campbells Cash &amp; Carry Pty Ltd [2005] NSWCA 83 ; (2005) 63 NSWLR 203 at [78] - [82] .
Case: Fostif Pty Ltd v Campbells Cash &amp; Carry Pty Ltd [2005] NSWCA 83 ; (2005) 63 NSWLR 203
Outcome: cited
The Williams &amp; Hughes/Hillcrest retainer appears to have been for limited legal services ("[a]dvising and negotiating on behalf of Chris Gurtler in communications with Kosta Patsan and Finance Now Pty Ltd's solicitors"). It described Hillcrest as the "client" for the purposes of the agreement. It envisaged that Hillcrest would give instructions (cl 22). I would simply note in passing that this agreement did not provide Hillcrest with a level of control of the litigation comparable to that had by the litigation funder in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58; for aspects of the terms of which see Fostif Pty Ltd v Campbells Cash &amp; Carry Pty Ltd [2005] NSWCA 83 ; (2005) 63 NSWLR 203 at [78] - [82] .
Case: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499
Outcome: cited
The principles underlying issue waiver have been the subject of considerable discussion in judgments of this Court, most recently in the Full Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 229 ALR 304 at [43] ff; see also DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499; Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. In light of the Full Court's decision it is unnecessary for me to consider the extent to which Federal Court decisions which pre-dated the decision of the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 require some qualification.
Case: Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Outcome: cited
The principles underlying issue waiver have been the subject of considerable discussion in judgments of this Court, most recently in the Full Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 229 ALR 304 at [43] ff; see also DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499; Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. In light of the Full Court's decision it is unnecessary for me to consider the extent to which Federal Court decisions which pre-dated the decision of the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 require some qualification.
Case: Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601
Outcome: cited
Before dealing directly with the first respondent's contention there is one matter to which I need refer concerning the characterisation of Gurtler-Hillcrest relationship for the purposes of legal professional privilege. It relates to common interest privilege. Having regard to their relationship inter se in light of the funding agreement and the common retainer, and of their common interest in the successful prosecution of the litigation and in advice given in relation thereto, I am satisfied that a possibly distinctive form of common interest privilege exists between them in relation to lawyer-client communications in the Gurtler proceedings: on common interest privilege see generally Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 609 ff; Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272 at [17]-[19]; Cross on Evidence, 25-265 (Aust ed). I do not, for present purposes, consider it appropriate to characterise their individual interests as selfish and potentially adverse to each other: cf Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 409-410. Rather, while each stands to gain differentially from the litigation, their interests are nonetheless common in that their individual interest came together in the successful prosecution of it. 49 I have described the common interest as possibly distinctive for this reason. It is well accepted that while, normally, all holders with a privilege based on common interest must concur in waiving it, fairness can require that disclosure by one holder of common interest privilege can have effect as a waiver by all: Farrow Mortgage Services Pty Ltd (in liq) , at 608; Patrick , at [23]-[29]. In the case of funded litigation, where the party who waives the litigation is the applicant or respondent in the proceedings, that waiver may well as of course bind the litigation funder, whether or not it has consented to the waiver. It is unnecessary that I express a concluded view on this.
Case: Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272
Outcome: cited
Before dealing directly with the first respondent's contention there is one matter to which I need refer concerning the characterisation of Gurtler-Hillcrest relationship for the purposes of legal professional privilege. It relates to common interest privilege. Having regard to their relationship inter se in light of the funding agreement and the common retainer, and of their common interest in the successful prosecution of the litigation and in advice given in relation thereto, I am satisfied that a possibly distinctive form of common interest privilege exists between them in relation to lawyer-client communications in the Gurtler proceedings: on common interest privilege see generally Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 609 ff; Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272 at [17]-[19]; Cross on Evidence, 25-265 (Aust ed). I do not, for present purposes, consider it appropriate to characterise their individual interests as selfish and potentially adverse to each other: cf Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 409-410. Rather, while each stands to gain differentially from the litigation, their interests are nonetheless common in that their individual interest came together in the successful prosecution of it. 49 I have described the common interest as possibly distinctive for this reason. It is well accepted that while, normally, all holders with a privilege based on common interest must concur in waiving it, fairness can require that disclosure by one holder of common interest privilege can have effect as a waiver by all: Farrow Mortgage Services Pty Ltd (in liq) , at 608; Patrick , at [23]-[29]. In the case of funded litigation, where the party who waives the litigation is the applicant or respondent in the proceedings, that waiver may well as of course bind the litigation funder, whether or not it has consented to the waiver. It is unnecessary that I express a concluded view on this.
Case: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Outcome: cited
The Full Court in Rio Tinto said of this (at [53]-[54]): "... this correctly summarises the effect of previous authorities, such as Thomason, United States Surgical and Benecke . Referring to the observation of Kirby J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607; [1996] HCA 15 that a mere reference to legal advice will not amount to disclosure, the Spalvins court found that, for the most part, the ASC had done no more than this and had not, therefore, waived privilege. Although the Full Court was necessarily guided by the authorities prior to Mann , there is little, if anything, in the passage quoted above that would require modification to take account of Mann . It is plain enough that the majority in Mann also saw the 'issue waiver' cases as a species of waiver, to which the same basic principle applied. Their Honours' analysis in Spalvins emphasises, as does the majority in Mann , that waiver comes about because the privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim , or has created a situation where another party must reasonably do so by way of a defence." (Emphasis added) 48 Before dealing directly with the first respondent's contention there is one matter to which I need refer concerning the characterisation of Gurtler-Hillcrest relationship for the purposes of legal professional privilege. It relates to common interest privilege. Having regard to their relationship inter se in light of the funding agreement and the common retainer, and of their common interest in the successful prosecution of the litigation and in advice given in relation thereto, I am satisfied that a possibly distinctive form of common interest privilege exists between them in relation to lawyer-client communications in the Gurtler proceedings: on common interest privilege see generally Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 at 609 ff; Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272 at [17]-[19]; Cross on Evidence, 25-265 (Aust ed). I do not, for present purposes, consider it appropriate to characterise their individual interests as selfish and potentially adverse to each other: cf Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 409-410. Rather, while each stands to gain differentially from the litigation, their interests are nonetheless common in that their individual interest came together in the successful prosecution of it.
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: cited
As to the instruction of lawyers, the funding agreement provided that instructions in the proceedings were to be given by Mr Gurtler, not by Hillcrest: see cl 4. However and despite the "no oral modification" clause in the agreement, it was open to Mr Gurtler and Hillcrest to vary this if they so wished: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at [213] - [227] . I would note, though, that the funding agreement probably did not preclude Mr Gurtler's use of the agency of Hillcrest in giving instructions in any event. 51 What is clear on the material before me is that, whether or not Hillcrest has acted in strict accordance with the written terms of the funding agreement, the manner of his communication with Williams &amp; Hughes was acquiesced in by Mr Gurtler. This is made clear in his affidavit verifying the list of documents produced. He designedly, as a matter of convenience, had Mr Van Noort deal directly with the lawyers to confirm his instructions or to comment upon their advice in order to enable the lawyers to further advance his case. It is unsurprising that he adopted this course given that as between them Mr Van Noort, as a lawyer, was likely to be more able to make forensic choices than Mr Gurtler: cf Fostif NSWCA at [137]. 52 The 31 July email was one Mr Van Noort should never have sent. Nonetheless, on its face, and for the purposes of the Finance Now's present contention, it purports to have been in furtherance of the common interests of Mr Gurtler and Hillcrest. Mr Gurtler may have been unaware of its contents. Still he authorised Mr Van Noort's contact with Mr Hambrett. Whatever complaint Mr Gurtler may have had of his agent's conduct a matter between himself and his agent to which Finance Now was a stranger the email itself provides no basis for suggesting that Van Noort was acting other than in Gurtler's, hence their common, interest in the matter.
Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: cited
It is well recognised that a claim of legal professional privilege will not be upheld if the party resisting the claim for legal professional privilege can show reasonable grounds for believing that the communication effected by the document for which privilege is claimed was made for an illegal or improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501; Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500; and see generally AWB Ltd v Cole (No 5) [2006] FCA 1234 at [211] - [219] . This does not require a demonstration that the legal advisers were themselves conscious participants in fulfilling the improper purpose: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 at 106. While it is not sufficient merely to allege improper purpose, it is not necessary fully to prove the allegations. There has to be something to give colour to the charge a prima facie case: Propend at 514.