mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69 
Outcome: cited
question is said to be sourced in the ground that having found that the applicant's condition progressed from the earliest accepted 'injury' of 'adjustment disorder with features of anxiety and depression' to a delusional/paranoid disorder condition (at [25] of the Tribunal's reasons), the Tribunal should have found that the applicant's subsequent condition formed part of his compensable injury under the 1971 Act: Comcare Australia (Department of Defence) v Madia (2002) 36 AAR 69. In making its finding that the applicant's condition had progressed, the Tribunal implicitly accepted that the underlying patho-physiological condition, which caused the accepted injury and the subsequent condition, had not changed. On this basis it was not a new injury for which liability under s 14 of the SRC Act had to be established or accepted. My difficulty with this ground is that it seems to be predicated on the proposition that what was said by the Tribunal at [25] of its reasons, in particular its use of the phrase: 'The condition had progressed ...', amounts to a finding that the 'adjustment disorder with features of anxiety and depression led, of itself, to the delusional disorder'. In the face of the evidence referred to at [15] and [16] of the Tribunal's reasons and the Tribunal's actual findings at [29] and [31] [33] of its reasons, I cannot accept that what the Tribunal said at [25] amounts to such a finding. And if there is no such finding, the ground and its inherent question of law do not arise. Dealing first with evidence 1. The psychiatrist who first diagnosed the applicant as suffering from a delusional disorder, Dr Brown, considered it was a constitutional condition. He based the diagnosis on a claim by the applicant that he had been injected in the neck by his supervisor at the Gosford DSS in 1990. 2. On the other hand, the applicant's treating psychiatrist, Dr Greenway, linked the applicant's delusional disorder to his treatment at the Gosford DSS. 3. Dr Lambeth, called on behalf of the applicant, also considered the delusional disorder was contributed to by events at the Gosford DSS. He did not think it was related to the applicant's employment at the ATO. 4. It was also clear from the medical evidence that the diagnosis of a delusional disorder was a quite distinct ailment from that of 'an adjustment disorder with features of anxiety and depression'. The delusional disorder had its own DSM-IV classification and diagnostic criteria.
Case: Condell v Commissioner of Taxation [2007] FCAFC 44
Outcome: cited
think Comcare's submission on this ground is correct and that it would not be inappropriate to dismiss the application. I have no doubt that questions 2, 3 and 4 are mixed questions of fact and law; my only doubt concerns question 1. Because I can foresee an argument that it is a question of law, rather than undertake a comparative assessment of the arguments for and against the correctness of that proposition, I propose to deal with all the questions on which the appeal is brought on the basis that they are questions of law. But as Gyles J recently said in Condell v Commissioner of Taxation [2007] FCAFC 44 at [20] : '... that does not convert the appeal into a full appeal or permit findings of mixed fact and law to be made. An appeal on a question of law can only succeed if legal error in the AAT decision is demonstrated.'
Case: Duong v Australian Postal Corporation (2005) 41 AAR 288
Outcome: cited
applicant contended that this approach was contrary to the evidence and contrary to the principles in Lees , which have not been disturbed by the decision in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 and which have been followed in Australian Postal Corporation v Mowbray &amp; Anor [2003] FCA 1258 ; (2003) 77 ALD 440, Oudyn and Duong v Australian Postal Corporation (2005) 41 AAR 288.
Case: Hart v Comcare [2005] FCAFC 16 ; (2005) 145 FCR 29 
Outcome: cited
Tribunal then considered whether the claim made by the applicant for his current psychological condition was compensable under s 14 of the SRC Act. It concluded, by reason of the exclusion in the definition of 'injury' in subs 4(1) of the SRC Act that it 'does not include any such disease, injury or aggravation suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment' and by reason of the construction of that exclusion by a Full Court of this Court in Hart v Comcare [2005] FCAFC 16 ; (2005) 145 FCR 29, affirming the first instance judgment of Whitlam J in Comcare v Hart (2004) 139 AAR 396, in particular at [11], [21] and [22], that it was not: [33].
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: approved
I have already indicated, I also agree with his submission that the essence of the applicant's appeal on this ground is based on the use of the word 'progressed' in [25] of the Tribunal's reasons. However, he further submits that particular words in a decision-maker's reasons should not be read in isolation. If ambiguity is present, the words should be interpreted 'beneficially' to the decision-maker: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, approving Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
Case: R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565
Outcome: considered
In his reasons at [19] and following, the Federal Magistrate set out the submissions made on the appellant's behalf concerning why the Tribunal had fallen into jurisdictional error. The same submissions are made in this appeal and will be referred to shortly. The Federal Magistrate identified the principles to be applied when exercising the discretion as follows (at [26] and [27]): "The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; Naguit &amp; Anor v Minister for Immigration [2005] FMCA 930 ; S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283). Unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the Court's discretion (see RE Commonwealth of Australia: Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 per McHugh J at 495-6)." 15 One of the cases cited by his Honour in support of the proposition that he was not required in the circumstances to determine whether there was jurisdictional error was R v Australian Broadcasting Tribunal; ex parte Fowler (1980) 31 ALR 565 (" Fowler "). In that case, the High Court ordered that an application for constitutional writs be dismissed because of the unwarrantable delay in commencing the proceedings. The Court expressly did so (at 570) "whether or not the prosecutors would otherwise have been entitled to relief, a question on which it [was] unnecessary to express any views". The approach of the High Court does not sit entirely comfortably with the reasoning of the Full Court in S58 . However, I doubt that the High Court was intending, by this judgment, to establish a principle that it was unnecessary for a court to consider the strength of the applicant's case when dismissing an application for constitutional writs because of unwarrantable delay. Later High Court authority is clear on the link between delay as a consideration in the exercise of a discretionary power which might preclude a party from litigating a case, and the strength of that party's case: see for example Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480.
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
The Sobey interests did not contend that the material referred to in the affidavit of Mr Lockett was not in admissible form. There was a submission that certain of the material available to Mr Nicol arose from the erroneous disclosure of other privileged material, but there was no evidence from the Sobey interests to support that claim, and it was also accepted that the disclosure of that material was made in circumstances where in practical terms the privilege in that material could not now be maintained: see Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. In other words, even if that material had been privileged, it had been disclosed and it was too late to do anything about it. 18 Apart from the blanket claim that client legal privilege in the documents in PT.1, PT.2 and PT.4 does not exist because of the 'fraud' exception to the entitlement to have communications treated as subject to legal professional privilege, Mr Nicol contended that there were particular documents in respect of which client legal privilege was not made out because: (a) the documents were not described in a way which supported the claim for privilege and were not otherwise proved to be privileged; (b) the documents comprised communications which were either not confidential, or where privilege had been waived by disclosure to a third party; (c) the documents were not, or were not shown to be, made for the dominant purpose of obtaining legal advice; (d) the documents were invoices for the provision of legal services which did not contain privileged information or were not prepared for the dominant purpose of giving or receiving legal advice. 19 I attach to these reasons a schedule identifying the documents over which privilege has not been claimed or, where privilege was claimed and disputed, in respect of which the Sobey interests adduced no evidence in support of the claim. An example is PT.2.51. It also separately identifies in Part 2 the documents over which privilege is claimed and which Mr Nicol (save for the contention based on the 'fraud' exception) does not dispute. In Part 3 it identifies the documents about which there is a dispute (the disputed documents). I have addressed those documents separately. The fourth part of the schedule reflects my rulings on the disputed documents in the light of my reasons below, and again subject to consideration of 'the fraud exception'. I have in the fifth part of the schedule reflected my rulings on the documents in parts two and four (that is, documents over which I have found privilege to exist subject to consideration of the fraud exception) in the light of my conclusions on the contentions about 'the fraud exception'.
Case: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: referred to
The parties did not dispute the principles generally applicable to the determination of whether a document is subject to legal professional privilege. At this interlocutory point, the common law governs the determination of whether the disputed documents are the subject of legal professional privilege: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [23] . 22 Legal professional privilege protects from disclosure any material brought into existence for the dominant purpose of obtaining or providing legal advice or for the dominant purpose of use in existing or reasonably participated legal proceedings: Esso at [38]. The privilege is that of the client, rather than that of the legal practitioner.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: referred to
The party asserting the privilege in relation to a particular document or documents has the onus of establishing, by admissible evidence, that the privilege is properly claimed: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688-689. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 Lockhart J helpfully described classes of documents to which the privilege will attach. It is not the function of the Court to trawl through voluminous material without the party which claims privilege having adduced evidence in support of the claim. In the face of contested evidence, the Court may examine particular documents to assist in deciding whether the privilege is properly claimed. Consequently, where there is no evidence in support of the claim in respect of a particular document, I have treated the document as not privileged. see e.g. per Bleby J in Health &amp; Life Care Ltd v Price Waterhouse (1997) 69 SASR 362 ( HLC ) at 373.
Case: Trade Practices Commission v Sterling (1979) 36 FLR 244
Outcome: referred to
The party asserting the privilege in relation to a particular document or documents has the onus of establishing, by admissible evidence, that the privilege is properly claimed: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688-689. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 Lockhart J helpfully described classes of documents to which the privilege will attach. It is not the function of the Court to trawl through voluminous material without the party which claims privilege having adduced evidence in support of the claim. In the face of contested evidence, the Court may examine particular documents to assist in deciding whether the privilege is properly claimed. Consequently, where there is no evidence in support of the claim in respect of a particular document, I have treated the document as not privileged. see e.g. per Bleby J in Health &amp; Life Care Ltd v Price Waterhouse (1997) 69 SASR 362 ( HLC ) at 373.
Case: Health &amp; Life Care Ltd v Price Waterhouse (1997) 69 SASR 362
Outcome: followed
The party asserting the privilege in relation to a particular document or documents has the onus of establishing, by admissible evidence, that the privilege is properly claimed: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688-689. In Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245-246 Lockhart J helpfully described classes of documents to which the privilege will attach. It is not the function of the Court to trawl through voluminous material without the party which claims privilege having adduced evidence in support of the claim. In the face of contested evidence, the Court may examine particular documents to assist in deciding whether the privilege is properly claimed. Consequently, where there is no evidence in support of the claim in respect of a particular document, I have treated the document as not privileged. see e.g. per Bleby J in Health &amp; Life Care Ltd v Price Waterhouse (1997) 69 SASR 362 ( HLC ) at 373.
Case: Ainsworth v Wilding (No 2) [1900] 2 Ch 315
Outcome: referred to
Bills of costs will be privileged if they record the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597; R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. Similarly, an engagement letter between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [45] - [48] .
Case: Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597
Outcome: referred to
Bills of costs will be privileged if they record the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597; R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. Similarly, an engagement letter between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [45] - [48] .
Case: R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35
Outcome: referred to
Bills of costs will be privileged if they record the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597; R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. Similarly, an engagement letter between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [45] - [48] .
Case: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44
Outcome: referred to
Bills of costs will be privileged if they record the progress of legal advice or its nature, but documents of that nature which do not disclose the nature or content of privileged material are not: Ainsworth v Wilding (No 2) [1900] 2 Ch 315; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (New South Wales) (1989) 86 ALR 597; R v Manchester Crown Court; Ex parte Rogers [1999] 4 All ER 35. Similarly, an engagement letter between a solicitor and a client is not privileged except to the extent that it records legal advice or material touching upon legal advice to be given: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [45] - [48] .
Case: Varawa v Howard Smith &amp; Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382
Outcome: referred to
Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith &amp; Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ).
Case: Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500
Outcome: discussed
Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith &amp; Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ). 28 The exception is not confined to cases where the communication is in furtherance of the commission of a crime or fraud. Kearney provides an example: privilege did not apply to communications between the Northern Territory Government and its legal advisers which were directed to making a regulation which would defeat an Aboriginal land claim. Gibbs CJ at 514 said the exception extended 'to include anything that might be described as a fraud on justice'. See also R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141 where the communication as to the client's address was not regarded as confidential because it would be against public interest to so regard it: the communication of the address to the legal adviser was said expressly to be confidential so as to frustrate the efficacy of a custody order. Such a purpose would now result in the disclosure of the address under s 121(2) of the Evidence Act 1995 (Cth).
Case: Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: considered
Consequently, such communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud: Varawa v Howard Smith &amp; Co Ltd [1910] HCA 11 ; (1910) 10 CLR 382; Attorney-General (Northern Territory) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 ( Kearney ); Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 ( Propend ). 34 The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used. 54 In HLC , the Full Court of the Supreme Court of South Australia (Doyle CJ, Lander and Bleby JJ) held that a document recording information provided by a potential witness in litigation was privileged from production on the ground of legal professional privilege. There is no reason to regard 'litigation privilege' in that context differently from privilege arising from communications for the purpose of giving advice: see Propend , and per Doyle CJ in HLC at 364. That privilege was found to exist in HLC even though, at least arguably, the communication between the witness and the solicitor was not privileged. It existed because the document recording the statement was a communication by the solicitor who had taken the statement of the information provided by the witness, and had the necessary purpose (in that case, for use in existing litigation). See also Lander J at 370, and Bleby J at 371.
Case: R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141
Outcome: discussed
The exception is not confined to cases where the communication is in furtherance of the commission of a crime or fraud. Kearney provides an example: privilege did not apply to communications between the Northern Territory Government and its legal advisers which were directed to making a regulation which would defeat an Aboriginal land claim. Gibbs CJ at 514 said the exception extended 'to include anything that might be described as a fraud on justice'. See also R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141 where the communication as to the client's address was not regarded as confidential because it would be against public interest to so regard it: the communication of the address to the legal adviser was said expressly to be confidential so as to frustrate the efficacy of a custody order. Such a purpose would now result in the disclosure of the address under s 121(2) of the Evidence Act 1995 (Cth).