mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: United States Tobacco v Minister for Consumer Affairs (1988) 20 FCR 520
Outcome: distinguished
In maintaining its opposition to the application, counsel for the Commonwealth has submitted that Order 52, r 14 requires in terms that "each party to the proceeding in the court appealed from ... shall be joined as a party ... to the appeal" and he relies upon the observations of the Full Court in United States Tobacco v Minister for Consumer Affairs (1988) 20 FCR 520 where it was said, at 534: "An intervener, whether pursuant to s 12 of the ADJR Act, O 6, r 8(1) of the Federal Court Rules , s 78A of the Judiciary Act 1903 (Cth) or otherwise , becomes a party to the proceedings with the benefits and burdens of that status." (Emphasis added). 5 The proposition that an intervener becomes a party to the proceedings, the Second Respondent pointed out, also was accepted in Cheesman v Waters (1997) 77 FCR 221 at 227, another decision of the Full Court. Moreover, in United States Tobacco the Court referred with approval to the following passage from the judgment of Hutley JA, with whom Reynolds and Glass JJA agreed, in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396: "A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in the Boilermakers' case ..., though he was only an intervener in the High Court..."
Case: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
Order 3 was plainly interlocutory. A court must remain in control of its own interlocutory orders which cannot be allowed to be used as an instrument of injustice; Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178.
Case: Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380
Outcome: cited
In a rare category of cases the discovery of new facts will not be an essential requirement for the exercise of the power to set an order aside. Where, as in the present case, the enforcement of the order would work an injustice such that the Court's own order would be used to bring about a result that would be contrary to the very purpose of the order, the Court must have power under s 23 of the Federal Court Act 1976 (Cth) to set the order aside; see CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345 (" Cigna ") at 391 392; Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380 at 393, 399-400, 405 and 421-424.
Case: CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345
Outcome: cited
In a rare category of cases the discovery of new facts will not be an essential requirement for the exercise of the power to set an order aside. Where, as in the present case, the enforcement of the order would work an injustice such that the Court's own order would be used to bring about a result that would be contrary to the very purpose of the order, the Court must have power under s 23 of the Federal Court Act 1976 (Cth) to set the order aside; see CSR Limited v Cigna Insurance Australia Limited [1997] HCA 33 ; (1997) 189 CLR 345 (" Cigna ") at 391 392; Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380 at 393, 399-400, 405 and 421-424. 45 If the respondents are correct in their contention, the injustice would consist of a further delay in the carrying out of the scheme contained in Part VAA by sending these matters to a Committee in the absence of any evidence whatsoever of jurisdictional error on the part of the Committee. What the respondents seek to do is to prevent the processes of the Court from being abused and to protect the integrity of its processes; see Cigna at 391. 46 Of course, I have no view either way as to whether there was a live issue raised by Drs Do and Ho in the Committee although it must be noted that Mr Robinson conceded before me on the hearing of these motions that these matters are not "in the main" concerned with Regulation 11(b). 47 I therefore propose to give the applicants and the respondents an opportunity to address me on the question of whether Dr Do or Dr Ho relied on Regulation 11(b) before the Committee. I recognise, as did the Full Court in Oreb , that it may not have been necessary for the applicants to have referred specifically to Regulation 11(b). However, it should appear from the transcript, the evidence and the written submissions, whether the practitioners may be taken to have relied on that Regulation.
Case: Health Insurance Commission v Grey [2002] FCAFC 130 ; (2002) 120 FCR 470
Outcome: referred to
There is a substantial public interest in the prompt resolution of matters arising under Part VAA of the Act. As the Full Court said in Health Insurance Commission v Grey [2002] FCAFC 130 ; (2002) 120 FCR 470 at [173] the object of the scheme is to protect patients and the Commonwealth against abuse of the system. 39 It would therefore be contrary to the public interest and, as I have said, contrary to the underlying purpose of the Order, to permit it to be used so as to further delay the resolution of these matters unless there is a live issue as to the application of Regulation 11(b), with evidence that the issue was in fact before the relevant Committee at the time of the hearings in 2002. 40 Order 3 was expressed as an agreement but it took effect as a consent order.
Case: Oreb v Willcock [2005] FCAFC 196
Outcome: referred to
The decision of the Full Court on the appeal was handed down on 16 September 2005; see Oreb v Willcock [2005] FCAFC 196 (" Oreb " ). 6 Dr Oreb's appeal against my findings in relation to the investigative referral and the adjudicative referral was dismissed. The cross-appeal, though stated in the order of the Federal Court to have been allowed, failed in substance. It succeeded only on the form of one of the orders which I made at first instance. 7 The respondents' contention that the application of Dr Do ("Dr Do") and/or Dr Ho ("Dr Ho") must be dismissed is put in two ways. First, it is said to follow from the dismissal of Dr Oreb's appeal. Second, it is said to follow from the reasons given by the Full Court for dismissing the cross-appeal.
Case: Repatriation Commission v Nation (1995) 57 FCR 25
Outcome: cited
The meaning of Order 3 is to be ascertained by the ordinary rules of construction. It is appropriate, in accordance with the accepted rules of construction to construe the order in the context in which it was made; Repatriation Commission v Nation (1995) 57 FCR 25 at 33-34. 30 The context in which the order was made appears, at least in part, from the transcript of 3 December 2004. This shows that the parties proceeded on the basis that all issues, whether of fact or law, in the remaining cases would be resolved by the result of the appeal in Oreb . Thus, the outcome of the appeal in Oreb , expressed in the orders of the Full Court, would, without more, determine the outcome of the remaining proceedings, including the matters of Dr Do and Dr Ho. 31 There is nothing surprising about this approach to the meaning of my order because, construed in this way, "result" is given its ordinary English meaning. Moreover, this is reinforced by the use of the word "solely" which shows that the intention of the parties was that there were no new issues of fact or law to be determined in the remaining proceedings.
Case: Wong v Professional Services Review Committee No 339 [2005] FCA 1351
Outcome: referred to
In Wong v Professional Services Review Committee No 339 [2005] FCA 1351 , I refused to make an order setting aside Order 3 to permit Dr Wong to run a fresh ground of review which was said to be previously unknown to the legal advisers. 36 It is true as I said in Wong at [12] that the principle of finality of litigation applies to interlocutory orders, subject to the moving party establishing that new facts have come into existence. In the present case it cannot be said that new facts have been discovered which could not have been known on 3 December 2004. Rather, through no fault of the legal advisers of the parties, the reasoning process of the Full Court in Oreb opened up a distinction between the construction of s 106KA(2) and Regulation 11 which had not previously been drawn.
Case: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Outcome: referred to
AACo submits that where a party propounds a positive case that it possessed a certain state of mind, it opens up for examination and testing by the Court any evidence as to its actual state of mind. AACo submits that a defence which specifically invokes a positive state of mind is inconsistent with the maintenance of privilege over documents which contributed to that state of mind. As a consequence, AACo submits AMP has necessarily waived privilege in relation to its legal advice. AACo relies upon Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 411; Telstra Corporation Ltd &amp; Anor v BT Australasia Pty Ltd &amp; Anor (1998) 85 FCR 152 at 166-7; Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 at [11] ; BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302 at [17] ; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336 at [40] [42]. 30 Many decisions of this and other courts have considered circumstances in which, by its pleadings, a party waives its legal professional privilege. In Fort Dodge , the respondent, in its defence to a claim of misleading and deceptive conduct in relation to a contract, alleged that it had entered into the contract on the basis of representations made by the applicant. As such, it raised a positive case with respect to its state of mind at the time of entering into the contract. Hely J (at [11]) found that by doing so, the respondent: 'opened up for examination and testing the source of, and the basis for, that state of mind. Where a party makes allegations raising the issue of its state of mind, to which legal advice is likely to have contributed, the party cannot continue to claim legal professional privilege for that advice: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405'. Hely J determined that the pleading of the state of mind was inconsistent 'with the continued maintenance of confidentiality of contemporaneous legal advice as to those matters' (see at [14]). 35 In the present case, the belief pleaded by AMP is not intimately connected with the legal advice given to it at the time: cf Ampolex per Giles CJ Comm D at 411F. AMP's defence does not make assertions as to the content of legal advice given to it; nor does AMP's defence state that its decision to accept the tender of Nebo was based upon legal advice: cf Rio Tinto. AMP does not assert a belief in particular legal requirements or consequences, which could be reasonably expected to have been predicated upon legal advice, in which case legal advice might be material evidence in the proceedings. Rather, AMP has pleaded its belief with respect to the best commercial option which was open to it, a belief informed primarily by commercial advice from Rabo. In these circumstances I do not consider that AMP's pleadings are inconsistent with the maintenance of its legal professional privilege.
Case: BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302
Outcome: referred to
AACo submits that where a party propounds a positive case that it possessed a certain state of mind, it opens up for examination and testing by the Court any evidence as to its actual state of mind. AACo submits that a defence which specifically invokes a positive state of mind is inconsistent with the maintenance of privilege over documents which contributed to that state of mind. As a consequence, AACo submits AMP has necessarily waived privilege in relation to its legal advice. AACo relies upon Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 411; Telstra Corporation Ltd &amp; Anor v BT Australasia Pty Ltd &amp; Anor (1998) 85 FCR 152 at 166-7; Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 at [11] ; BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302 at [17] ; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336 at [40] [42].
Case: DSE Holdings Pty Limited v Intertan Inc &amp; Anor [2003] FCA 384
Outcome: referred to
AACo submits that the majority judgment in Telstra Corporation remains good law and relies upon Perpetual Trustees (WA) Ltd v Equuscorp Pty Limited [1999] FCA 925 at [16] and DSE Holdings Pty Limited v Intertan Inc &amp; Anor [2003] FCA 384.
Case: Perpetual Trustees (WA) Ltd v Equuscorp Pty Limited [1999] FCA 925
Outcome: referred to
AACo submits that the majority judgment in Telstra Corporation remains good law and relies upon Perpetual Trustees (WA) Ltd v Equuscorp Pty Limited [1999] FCA 925 at [16] and DSE Holdings Pty Limited v Intertan Inc &amp; Anor [2003] FCA 384.
Case: Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336
Outcome: referred to
AACo submits that where a party propounds a positive case that it possessed a certain state of mind, it opens up for examination and testing by the Court any evidence as to its actual state of mind. AACo submits that a defence which specifically invokes a positive state of mind is inconsistent with the maintenance of privilege over documents which contributed to that state of mind. As a consequence, AACo submits AMP has necessarily waived privilege in relation to its legal advice. AACo relies upon Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 411; Telstra Corporation Ltd &amp; Anor v BT Australasia Pty Ltd &amp; Anor (1998) 85 FCR 152 at 166-7; Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 at [11] ; BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302 at [17] ; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336 at [40] [42]. 32 In Rio Tinto , Sundberg J stated (at [43]): '... the question whether the respondent has acted in a manner inconsistent with the maintenance of the privilege remains. In my opinion, however one approaches the question (as to which see [44] and [45]), he has so acted. The inconsistency arises from the combination of the following three facts: &#8226; the respondent has, by his Statement, raised as an issue in the instant proceedings his states of mind; &#8226; the respondent has, by his response to the applicant's request for particulars of his Statement, disclosed that the privileged scheduled documents had a bearing on those states of mind; and &#8226; the respondent has refused to produce those documents in answer to the first notice to produce.' 33 The above authorities establish that the conduct of a party will be inconsistent with the maintenance of privilege if the nature and extent of legal advice has been raised, whether directly or by necessary implication, by that party as an issue in the proceedings. This will usually occur where a state of mind has been positively pleaded in circumstances where legal advice given would be specifically pertinent to the formation of that state of mind or where a party's understanding of their legal position is critical to their defence. 35 In the present case, the belief pleaded by AMP is not intimately connected with the legal advice given to it at the time: cf Ampolex per Giles CJ Comm D at 411F. AMP's defence does not make assertions as to the content of legal advice given to it; nor does AMP's defence state that its decision to accept the tender of Nebo was based upon legal advice: cf Rio Tinto. AMP does not assert a belief in particular legal requirements or consequences, which could be reasonably expected to have been predicated upon legal advice, in which case legal advice might be material evidence in the proceedings. Rather, AMP has pleaded its belief with respect to the best commercial option which was open to it, a belief informed primarily by commercial advice from Rabo. In these circumstances I do not consider that AMP's pleadings are inconsistent with the maintenance of its legal professional privilege.
Case: Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347
Outcome: referred to
In Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347 the New South Wales Court of Appeal was required to decide whether privilege was waived in respect of advice concerning the legal remedies available to the plaintiff, where the exclusive election of a particular remedy was only binding if a person had knowledge of their other options at the time the election was made. In respect of the privilege Jordan CJ said (at 358-9): 'Hence, in effect, one of the issues in the case was what advice if any the plaintiff had received from her legal advisers as to her alternative legal rights. In these circumstances, since the fact and nature of the advice is an issue in the case, I am of opinion that privilege cannot be raised to prevent the proof of the advice.' 34 However, I cannot accept the submission of AACo that any positive defence mounted by AMP which raises its state of mind necessarily constitutes a waiver of privilege. In my opinion, in order to waive privilege a party must assert a belief which is likely to have been, or is explicitly said to have been, materially dependent upon legal advice given to that party. In that case the proof or otherwise of the belief is dependent upon the legal advice and accordingly privilege is waived. This is the position in cases where the dispute relates to a party's understanding of its legal position at a given point in time, such as Thomason , Rio Tinto, Ampolex and Fort Dodge . 36 In respect of AACo's second submission, namely that AMP waived its privilege by communicating its legal advice to Rabo, I consider that the applicant must also fail. In Mann v Carnell , the majority observed that the reasoning of all members of the Court in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 'was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege': see Mann v Carnell at 14 [30]. The majority also noted the observations of Jordan CJ in Thomason at 355, where his Honour said: 'The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client.'
Case: Australian Broadcasting Authority v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: referred to
Capital Steel submits that the Court did not have the power to make orders against the Commonwealth Bank and it referred to Australian Broadcasting Authority v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380, s 23 Federal Court of Australia Act 1976 (Cth) and O 25A r 5(5) of the Federal Court Rules . I do not need to consider that question. On any view, the reformulated orders involve a substantial interference in the commercial relationship between Capital Steel and the Commonwealth Bank. Even if the orders cover all contingencies in terms of possible loss to the Commonwealth Bank, and I am not completely satisfied that is the case, there will be time and expense involved in establishing any loss which may be suffered. Although the reformulated orders go some way towards addressing the prejudice to Capital Steel and the Commonwealth Bank if interlocutory injunctions are granted, the balance of convenience still favours the refusal of relief.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 80 ALJR 1672
Outcome: referred to
The test for the grant of an interlocutory injunction was most recently considered by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 80 ALJR 1672. I refer to the observations of Gleeson CJ and Crennan J at 1682-1683 [19] and Gummow and Hayne JJ at 1691-1692 [65]-[72]. 41 Capital Steel submits that Orrcon has not established that there is a serious question to be tried that the steel pipe Capital Steel supplied under the contract was defective in the sense that it did not comply with the terms of the contract between it and Orrcon. If a serious question to be tried is not established in relation to that matter then, it is submitted by Capital Steel, Orrcon's case falls away. Further, or in the alternative, Capital Steel submits that Orrcon has not established that there is a serious question to be tried that relief would be granted restraining payment under the letter of credit. The focus of the argument here was that there was not a serious question to be tried that Capital Steel has been guilty of unconscionable conduct within s 51AA of the TPA. Further, or in the alternative, Capital Steel submits that the balance of convenience favours refusing the interlocutory relief sought by Orrcon. 42 Orrcon relied on evidence from Dr Graham Powell who is a research metallurgist. He has prepared a report dated July 2007 and a supplementary report dated August 2007. Orrcon also relied on evidence from Dr John Field who is a statistical consultant. He has prepared a report dated 9 August 2007 and a supplementary report dated 12 August 2007. Orrcon also relied on evidence from Mr Victor Konstantinoff who holds a Bachelor of Science degree and is the branch operations manager employed by ETRS Pty Ltd ("ETRS").
Case: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491
Outcome: referred to
The Court said that the above list may not be exhaustive. The Court made the point that unconscionable conduct within s 51AA was not limited to cases where advantage was taken of a person under a special disability. At the same time the Court said that equity does not provide a remedy simply on the basis that, in the opinion of the judge, conduct is unfair. The section cannot be applied "to unconscionable conduct at large" (at 319 [50]). The Court referred with approval to a passage in the earlier decision of French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491. In that case French J said (at 509): "[It] prohibits conduct in respect of which a judge in equity would have been prepared to grant relief. The imposition of the prohibition precedes any actual or notional judicial decision. The judge deciding a case under s 51AA will be asking himself or herself whether he or she would have been prepared to grant relief at equity on the basis of an assessment of the conduct in question as unconscionable." 64 It is not immediately apparent that the facts alleged by Orrcon fall within one of the five categories identified in Samton . In one sense one can say that it is unconscionable or unconscientious to enforce legal rights oppressively or in bad faith but on one view of the authorities the real question is whether there is oppression or bad faith because the circumstances fall within one of the well-known cases in which equity will intervene on the ground that the conduct is unconscionable or unconscientious. 65 Orrcon referred to three first instance decisions in support of its contention that the facts as pleaded by it arguably constitute unconscionable conduct within s 51AA of the TPA.