mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Young v Dalgety [1987] 1 EGLR 116
Outcome: cited
may be that there will be, vis-a-vis LDC, a deemed removal by Vopak, a sale, and a deemed reinstallation by Vopak or by the Buyer of NFD's fixtures. Deemed removal, or at least an ignoring of, tenants' fixtures is not unknown in the context of rent review clauses: see, for example, New Zealand Government Property Corporation v HM &amp; S Ltd [1982] QB 1145 ; Young v Dalgety [1987] 1 EGLR 116.
Case: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518
Outcome: followed
The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.
Case: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 , 92 FCR 200
Outcome: considered
Order 15A provides for " Preliminary Discovery ". And again the rules contain limiting conditions: cf Airservices Australia v Transfield Pty Ltd [1999] FCA 886 , 92 FCR 200. Finn J there made the following observations as to the features of both rr 3 and 6 of O 15A: [5] I would emphasise at the outset the following features of these rules. First, while r 3 for obvious reasons allows discovery against a person whether or not that person is a possible respondent to the projected proceeding, the discovery available under r 6 is limited to discovery against the person who is the "prospective respondent". Secondly, as has been emphasised by judges of this Court, r 6 prescribes significant limiting conditions to be satisfied before an order can be made... An applicant who can satisfy them, is allowed "to fish" for the purpose of ascertaining whether he has a case against the prospective respondent... But preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves. It does not mandate mere rummaging through another's affairs. Thirdly, while an applicant does not have to make out a prima facie case for the purpose of satisfying the r 6(a) condition that he or she has reasonable cause to believe he or she has a right to obtain relief... an applicant will not necessarily be denied preliminary discovery because he or she "already has available evidence establishing a prima facie case for the granting of relief"... Fourthly, an order for discovery under r 6 can properly be characterised as an interlocutory order... Fifthly, in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90 ; 161 ALR 447 Tamberlin J held that the provisions of O 15A do not infringe the constitutional requirement that for this Court to have jurisdiction in relation to a proceeding there must be a "matter". ... Leave to appeal was granted and the appeal dismissed: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1.
Case: Ammerlaan v Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164
Outcome: followed
Provision, of course, is made in O 15 r 5 of the Federal Court Rules for the making of an order that a party give general discovery. The fundamental policy behind discovery is to ensure that litigation is decided upon the merits and that cases are not decided by ambush and surprise: Ammerlaan v Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164 at 173 per Olsson J. Such discovery as is ordered is a matter for the discretion of the Court. As a general rule the Court will not order a party to give general discovery: Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd [2005] FCA 242 at [5] per Stone J. Subsequent to the amendments to this Court's Rules in 1999 and the promulgation of Practice Note 14 , discovery is normally limited to the circumstances of a particular case.
Case: Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862
Outcome: considered
In that context, it is considered that the discretion to allow an applicant to inspect seized documents may be exercised to permit: (a) an assessment to be made as to whether or not there has been compliance with the order as made and (possibly) whether any further order pursuant to O 25B may be warranted; (b) the identification and separation from the entirety of those documents that were in fact seized, those documents which do or may provide evidence pending the hearing and determination of a proceeding; and (c) the identification and separation from the entirety of those documents that were in fact seized, those documents which do not provide such evidence so that those documents may be returned. And, in identifying those documents which should be preserved pending the final hearing and determination of a proceeding: (d) the search is not limited to those documents directly related to the precise cause of action then known: cf Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [6] [7] per Allsop J; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [4] per Jacobson J. There may well be other reasons for granting leave to an applicant to inspect seized documents. All of the purposes identified, however, have one thing in common -- they allow the documents which have been seized to be inspected in order to ensure that the search order has been complied with and to ensure that only evidence which should be preserved is in fact preserved pending the final determination of a proceeding.
Case: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707
Outcome: considered
In that context, it is considered that the discretion to allow an applicant to inspect seized documents may be exercised to permit: (a) an assessment to be made as to whether or not there has been compliance with the order as made and (possibly) whether any further order pursuant to O 25B may be warranted; (b) the identification and separation from the entirety of those documents that were in fact seized, those documents which do or may provide evidence pending the hearing and determination of a proceeding; and (c) the identification and separation from the entirety of those documents that were in fact seized, those documents which do not provide such evidence so that those documents may be returned. And, in identifying those documents which should be preserved pending the final hearing and determination of a proceeding: (d) the search is not limited to those documents directly related to the precise cause of action then known: cf Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [6] [7] per Allsop J; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [4] per Jacobson J. There may well be other reasons for granting leave to an applicant to inspect seized documents. All of the purposes identified, however, have one thing in common -- they allow the documents which have been seized to be inspected in order to ensure that the search order has been complied with and to ensure that only evidence which should be preserved is in fact preserved pending the final determination of a proceeding. 39 No submission was advanced on behalf of the Applicants contrary to the importance attached by the common law to protecting the privacy of individuals. Their submission was that the primacy attached to the administration of justice extended to conferring authority to access the materials as an adjunct to the discovery process. This contention was said by the Applicants to have been resolved by Jacobson J in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707. An order pursuant to O 25B in that proceeding had previously been made by Allsop J (as he then was). Consent orders were made on 7 September 2006 which provided for inspection by the Applicants and their solicitors.
Case: Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63 , 208 CLR 199
Outcome: considered
Although there may be no enforceable right to privacy presently recognised in Australian law (cf Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63 , 208 CLR 199) , such compulsory powers of search and seizure as are conferred by both Commonwealth and State legislation should not be construed as authorising any greater intrusion into the private affairs of individuals than is unambiguously authorised.
Case: Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211
Outcome: followed
Order 25 is likewise confined to the making of interim orders. Order 25 r 2, in particular, is confined to the making of orders as to the " preservation of property ". Those seeking orders pursuant to that rule do not need to satisfy the more onerous requirements imposed by O 25B: Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211 at 215 per Lockhart J. 34 It is considered that it is no part of the object or purpose of those provisions to facilitate the discovery processes otherwise authorised by the Rules or to facilitate the provision of further particulars . To construe those provisions as extending to such a purpose would erode both the importance attached by the common law to protecting the privacy of individuals and the constraints otherwise imposed by the Rules upon the discovery process.
Case: Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415
Outcome: followed
The Federal Court Rules , however, were amended in 1999 with the intent of confining the ambit of documents to be discovered: Salim v Loh (No 2) [2005] FCA 1417. French J there summarised the position as follows: [3] The 1999 amendments to the Rules, which introduced the new O 15 r 2, manifested '... a quite new and restrictive policy in relation to the discovery to be allowed' in the Federal Court -- South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 per Finn J. The rule that the discovery obligation covered documents that did no more than relate in some way to a matter in issue or that might lead to a train of inquiry has been abolished. The categories required to be discovered under O 15 r 2(3) include documents that support or adversely affect another party's case or that adversely affect a party's own case. They do not extend to documents that might support or adversely affect a party's case. The search obligation is limited to 'reasonable search'. Similarly, in Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 Lindgren J observed: [10] The question arises: what are the principles which should guide the parties in identifying categories? They are the principles which guide the Court when ordering discovery. In ACCC v Advanced Medical Institute [[2005] FCA 366] , I attempted to explain (at [19] -- [21]) that rule amendments and Practice Note 14 (Discovery) of 1999 were intended to establish a r&eacute;gime under which discovery is more confined than it was under the former Peruvian Guano test (cf The Compagnie Financi&egrave;re et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55). Practice Note 14 para 3 states: To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15 rule 2(3). Consistent with the more confined extent of discovery which is required, the Federal Court Rules now confer an express power to limit discovery and to make orders " necessary to prevent unnecessary discovery ": O 15 r 3(2).
Case: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373
Outcome: cited
The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.
Case: Bugaj v Bates [2004] FCA 1260
Outcome: followed
The power conferred by O 25B is expressed to be " for the purpose of securing or preserving evidence ". The purpose, not surprisingly, is not confined to securing only that material which may thereafter be discoverable. But, to enable a party to obtain an order pursuant to O 25B and thereafter permit that party to " rummage through " the materials seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable, would defeat the perimeters within which discovery is to be made by a party, especially the more confined and restricted extent of discovery which this Court now permits. It would also endorse a course which courts have properly shunned, namely a course of improperly permitting the relief authorised by O 25B to become an " investigatory tool " ( Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [26] , [1999] FCA 754 ; 46 IPR 159 at 164 per Branson J; Bugaj v Bates [2004] FCA 1260 at [13] per Stone J) or a preliminary step that later facilitates such an investigation.
Case: Halliday v Nevill [1984] HCA 80 ; (1984) 155 CLR 1
Outcome: followed
In some circumstances there may be a " tension " between common law privileges and " the efficient exercise of statutory powers ": Halliday v Nevill [1984] HCA 80 ; (1984) 155 CLR 1 at 20 per Brennan J; New South Wales v Corbett [2007] HCA 32 at [16] [22], [2007] HCA 32 ; 230 CLR 606 at 610 12 per Kirby J. Not in the context of the exercise of statutory powers facilitating the investigation of criminal offences, but rather in the context of construing that which is permitted by O 25B of the Federal Court Rules , there is not considered to be any such " tension ". The convenience of the position being advocated by the Applicants may well be understandable, but it is not a sufficient reason to depart from the importance accorded by the common law to an individual's right to preserve the privacy and confidentiality of his own documents. The interests in the administration of justice should not be understated or minimised; but those interests are adequately served by the preservation of the documents and materials properly seized.
Case: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1
Outcome: cited
Order 15A provides for " Preliminary Discovery ". And again the rules contain limiting conditions: cf Airservices Australia v Transfield Pty Ltd [1999] FCA 886 , 92 FCR 200. Finn J there made the following observations as to the features of both rr 3 and 6 of O 15A: [5] I would emphasise at the outset the following features of these rules. First, while r 3 for obvious reasons allows discovery against a person whether or not that person is a possible respondent to the projected proceeding, the discovery available under r 6 is limited to discovery against the person who is the "prospective respondent". Secondly, as has been emphasised by judges of this Court, r 6 prescribes significant limiting conditions to be satisfied before an order can be made... An applicant who can satisfy them, is allowed "to fish" for the purpose of ascertaining whether he has a case against the prospective respondent... But preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves. It does not mandate mere rummaging through another's affairs. Thirdly, while an applicant does not have to make out a prima facie case for the purpose of satisfying the r 6(a) condition that he or she has reasonable cause to believe he or she has a right to obtain relief... an applicant will not necessarily be denied preliminary discovery because he or she "already has available evidence establishing a prima facie case for the granting of relief"... Fourthly, an order for discovery under r 6 can properly be characterised as an interlocutory order... Fifthly, in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90 ; 161 ALR 447 Tamberlin J held that the provisions of O 15A do not infringe the constitutional requirement that for this Court to have jurisdiction in relation to a proceeding there must be a "matter". ... Leave to appeal was granted and the appeal dismissed: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1.
Case: Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd [2005] FCA 242
Outcome: followed
Provision, of course, is made in O 15 r 5 of the Federal Court Rules for the making of an order that a party give general discovery. The fundamental policy behind discovery is to ensure that litigation is decided upon the merits and that cases are not decided by ambush and surprise: Ammerlaan v Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164 at 173 per Olsson J. Such discovery as is ordered is a matter for the discretion of the Court. As a general rule the Court will not order a party to give general discovery: Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd [2005] FCA 242 at [5] per Stone J. Subsequent to the amendments to this Court's Rules in 1999 and the promulgation of Practice Note 14 , discovery is normally limited to the circumstances of a particular case.
Case: Liberty Financial Pty Ltd v Scott [2004] VSC 414
Outcome: cited
But that, it is respectfully considered, is all that His Honour decided. The decision does not stand as authority for the proposition that seized documents (in the absence of consent) may be inspected as an adjunct to the discovery process or to facilitate the provision of particulars. It is simply a decision as to what may be seized and, once seized, what may be looked for when inspecting those documents. Neither of the other decisions cited by the Respondents in this proceeding -- Remath Investments No 6 Pty Ltd v Savi World Transport Pty Ltd &amp; Fraser (Unreported, VSC, Byrne J, 12 November 1997) and Liberty Financial Pty Ltd v Scott [2004] VSC 414 -- provide further assistance. No decision other than that of Jacobson J was able to be identified by any of the parties, or Citic Pacific, which provided any further guidance on the issues now to be decided.
Case: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 637
Outcome: considered
The Respondents, by their Notice of Motion , seek the return of all documents seized and, it may safely be assumed, do not consent to any further inspection occurring. They may wish to reconsider their position, as may the Applicants, in light of the conclusions reached as to the limits of the right of inspection permitted by the Federal Court Rules . It may be noted that in Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 637 an order was made for the return of documents to the solicitor of a party apparently " to facilitate completion of discovery " . 69 Subject to the return of those documents which have no continuing relevance to the proceeding, it is not however considered that the remaining documents seized should be returned -- at least at this stage. No case has sought to be advanced by those from whom the documents were seized that the continued retention of those documents is causing them any inconvenience or prejudice. In the absence of any such contention, and notwithstanding the fact that a copy of the documents seized remains available to the Court, it is presently considered that the documents seized should remain available pending the resolution of the proceeding. 70 Pursuant to the terms of the orders made, records have also been kept of those who have inspected the seized documents and materials. Citic Pacific should be provided with a copy of those records that disclose the identity of those officers of the Applicants who have been given access to documents seized and the documents in fact inspected (if any).