mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306
Outcome: considered
present application made on 19 May 2004 was made under s 39B of the Judiciary Act . In my view there is no relevant distinction to be drawn between an application under s 75(5) of the Constitution and an application under s 39B of the Judiciary Act : Applicant A321 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [13] - [14] (' A321 case '). In each case prerogative or constitutional relief was sought, inter alia, to quash the decision. In Gibbs v Kinna [1998] VSCA 52 ; [1999] 2 VR 19 at 26, Kenny JA with whom Ormiston and Phillips JJA agreed, held that: The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.
Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: followed
also agree with McInnis FM that the proceedings should be dismissed because of an issue estoppel. Justice Dixon, as he then was, in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 explained the distinction between res judicata and issue estoppel in the following terms: In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. That passage was adopted by Gibbs CJ, Mason and Aicken JJ in their joint judgment in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597.
Case: Gibbs v Kinna [1998] VSCA 52 ; [1999] 2 VR 19
Outcome: considered
present application made on 19 May 2004 was made under s 39B of the Judiciary Act . In my view there is no relevant distinction to be drawn between an application under s 75(5) of the Constitution and an application under s 39B of the Judiciary Act : Applicant A321 of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [13] - [14] (' A321 case '). In each case prerogative or constitutional relief was sought, inter alia, to quash the decision. In Gibbs v Kinna [1998] VSCA 52 ; [1999] 2 VR 19 at 26, Kenny JA with whom Ormiston and Phillips JJA agreed, held that: The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.
Case: Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677
Outcome: applied
Somander v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 Merkel J held that, in determining whether res judicata applies, the primary question is whether the cause of action in the later proceeding is the same as that which was litigated in the earlier proceeding. For the purposes of res judicata doctrine the term cause of action is to be understood by reference to the substance of the action as distinct from its form: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 418 per Gummow J (affirmed (1993) 43 FCR 510); BC v Minister of Immigration and Multicultural Affairs [2001] FCA 1669 at [34] per Sackville J. For the reasons found by McInnis FM, these current proceedings should be dismissed as the cause of action has been determined in the second Federal Court decision. The doctrine of res judicata therefore, in my view, clearly applies. It does not matter that the re-litigation is intended to be or is based upon arguments that were not previously presented. In the A321 case , Wilcox J held at [18]: It will be apparent that the argument sought to be made confronts significant difficulties. However, I do not think it is appropriate to determine the present application by reference to those difficulties. The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case.
Case: Luna Park Sydney Pty Limited v Bose [2006] FCA 94
Outcome: applied
In Luna Park Sydney Pty Limited v Bose [2006] FCA 94 , Jacobson J at paras 16 through to and including 18 remarked as follows: 16. It was until recently well settled that there was no presumption upon default of the respondent of the correctness of the applicant's claims: see Commissioner of Taxation v Finn [1960] HCA 69 ; (1960) 103 CLR 165. 17. It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v Roadhouse Productions (2001) 190 ALR 288 per Stone J. 18. However, recent authorities indicate that the introduction of Order 35A provides the foundation for a finding that in the absence of a defence where there is a pleading by way of a statement of claim then the facts in the statement of claim are admitted.
Case: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856
Outcome: cited
Examples of the recent authorities which would fall within the class described by Jacobson J are: Australian Competition and Consumer Commission v 1Cellnet Limited Liability Company [2005] FCA 856 and Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7. Another more recent example of the type of case described by Jacobson J in terms of the ability to grant judgment under O 35A r 3(2)(c) is The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133.
Case: Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7
Outcome: cited
Examples of the recent authorities which would fall within the class described by Jacobson J are: Australian Competition and Consumer Commission v 1Cellnet Limited Liability Company [2005] FCA 856 and Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7. Another more recent example of the type of case described by Jacobson J in terms of the ability to grant judgment under O 35A r 3(2)(c) is The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133.
Case: The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133
Outcome: cited
Examples of the recent authorities which would fall within the class described by Jacobson J are: Australian Competition and Consumer Commission v 1Cellnet Limited Liability Company [2005] FCA 856 and Macquarie Bank Limited v Seagle [2005] FCA 1239 ; (2006) 67 IPR 7. Another more recent example of the type of case described by Jacobson J in terms of the ability to grant judgment under O 35A r 3(2)(c) is The Trustees of the Property of Amanda Marie Glass (A Bankrupt) v Heifer Creek Investments Pty Ltd as Trustee for the Nicholas Investment Trust [2007] FCA 1133.
Case: Roussel Uclaf v Pan Laboratories Proprietary Limited [1994] FCA 1176 ; (1994) 29 IPR 556
Outcome: considered
Trite though it may be, I note that s 154 of the Act confers jurisdiction upon this court with respect to matters arising under the Act . The Act does not contain a section which expressly empowers the court to order the delivery up of infringing products. This particular feature of the Act , in contradistinction to s 116 of the Copyright Act 1968 (Cth), was noted by Einfeld J in Roussel Uclaf v Pan Laboratories Proprietary Limited [1994] FCA 1176 ; (1994) 29 IPR 556. 22 His Honour further noted, however, that this court has general power to make an order for delivery up of that kind in accordance with established principles of equitable relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). That section provides that the court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the court thinks appropriate. I note, further, s 5(2) of the Federal Court of Australia Act 1976 , which provides for this Court to be a superior court of record and a court of law and equity. 23 I am quite satisfied, having regard to ss 5 and 23 of the Federal Court of Australia Act 1976 , that I have power to make order 2 of the orders sought. Power to make order 3 is derived, in my opinion, from a combination of s 122(1) of the Act and ss 5 and 23 of the Federal Court of Australia Act 1976 . Orders 4 and 5, as described earlier, are ancillary, and power to make them is to be found, in my opinion, in s 23 of the Federal Court of Australia Act 1976 . 24 Some further comment should be made in respect of the form in which the restraint proposed is cast. In Atkins Court Forms , Second Edition, Volume 30, 1979 issue, page 192, paragraph 67, the learned authors of that English text state as follows: Account of Profits The plaintiff in an infringement action is entitled, at his option, to an account of profits in lieu of damages. Where there is a consent or default order, there having been no full court hearing with consequent guidance as to what constitutes an infringement, the orders should be narrowly framed.
Case: Walker v Wilson Doors (Sales and Contracts) Limited (1964) RPC 246
Outcome: considered
The position in Australia in respect of an Applicant in an infringement application being entitled by election to an account of profits in lieu of damages is no different. In respect of the last sentence in the passage quoted, the learned authors cite Walker v Wilson Doors (Sales and Contracts) Limited (1964) RPC 246. Regard to that case discloses that it reports an exchange between Lloyd-Jacob J and counsel in relation to the form of a restraint order. His Lordship was concerned in the making of an order that the restraint not be cast overly widely. The restraint that had been proposed, albeit by consent, was one whereby the defendants would be restrained, whether by their directors, officers, servants or agents, or any of them or otherwise howsoever from infringing the plaintiff's letters patent numbered. 26 His Lordship remarked, at page 247: I am aware that this has been a common form of order in the past. In fact, I know because bitter experience has taught us, that it might well result in a dispute between the parties that has to be fought in contempt proceedings and might easily arise where parties have really got a genuine difference as to what is and what is not within the scope of the patent. 27 I am conscious that this is a default proceeding. It seems to me that the form of order which is proposed in this instance does not suffer from the vice of generality of the kind which occasioned concern to Lloyd-Jacob J. 28 It may prove to be the case that upon the filing of the affidavit of the kind described in para 4 of the proposed orders that more detailed direction is needed in respect of the taking of accounts. It seems to me, therefore, that it is appropriate to adjourn the substantive application to a date to be fixed, as well as adjourn the notice of motion to a date to be fixed, and to grant to the parties liberty to apply, both particularly in respect of or in relation to the taking of an account and otherwise generally in relation to the further conduct of the proceeding. 29 At the request of counsel for the Applicants, I shall in the formal orders add the words "in Australia" after "setting" in paragraph 1 and "predicts" in paragraph 2. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 28 April 2008 Counsel for the Applicants: Ms K Downes Solicitor for the Applicants: Legal IT Counsel for the Respondent: No appearance for the Respondent Date of Hearing: 18 April 2008 Date of Judgment: 18 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/569.html
Case: Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207
Outcome: cited
I have been taken carefully through the scheme documents themselves and, subject to one matter, I have no difficulty with them. In the course of the hearing I raised with counsel the issue of the warranty said to be given by the party whose shares or options are affected. As counsel has said, clauses along those lines have been approved or have been included in schemes approved in recent times by judges of this Court, the Supreme Court of New South Wales and the Supreme Court of Queensland, albeit misgivings or doubts having been expressed about the effect of such a clause (eg Mincom Ltd v EAM Software Finance Pty Ltd (No 3) [2007] QSC 207 at [20] [29]). I also have doubts but I do not believe that it is likely that the inclusion of such a clause would lead to any difficulty about confirmation of these schemes. Against the possibility of somebody coming along and arguing the matter, I cannot, of course, make a final judgment about that. Even if a draconian view were taken about that clause, it is hardly fundamental to these transactions in particular, because they are not at arm's length with parties that might be in contention, but, rather, they represent an internal restructure. 4 I have been taken carefully through the information memorandum and to the material which backs that memorandum including the expert report and the underlying advices which are directed to two topics of significance. The first is that of tax and the second is that of corporate governance, bearing in mind the different regimes in Australia, on the one hand, and Delaware, on the other. As will be appreciated, the question in the expert report is rather different from usual. The financial structure, except perhaps for costs incurred in the course of the transaction, effectively remains the same before and after. The assessment of whether to vote for the change of location will be governed by matters other than the immediate economic consequences to the company. It will involve a broader assessment by investors as to whether they wish to become part of the restructured operation and, if so, how they should do so, noting that there is, if the scheme is approved, an alternative between holding CHESS depository instruments (CDIs) listed on the Australian Securities Exchange, on the one hand, and the American securities listed, hopefully, on the NASDAQ Stock Market on the other. 5 For those reasons I make orders in accordance with the short minutes of order which I have initialled. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 3 September 2007 Counsel for the Plaintiff: Mr TF Bathurst QC Solicitor for the Plaintiff: Corrs Chambers Westgarth Date of Hearing: 23 August 2007 Date of Judgment: 23 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1387.html
Case: South Australia v Peat Marwick Mitchell (1995) 65 SASR 72
Outcome: applied
In South Australia v Peat Marwick Mitchell (1995) 65 SASR 72 at 75-77, Olsson J said: [W]here a privileged document is exchanged between two parties with a common interest, both parties are entitled to claim and maintain that privilege. ... It is to be borne in mind that the concept of common interest privilege is invoked so as to counter a suggestion that privilege has been waived by the deliberate release or publication of privileged material, by the party entitled to claim privilege, to a third party. ... [A] joint or common interest is not to be taken as a rigidly defined concept. It spans a variety of potential relationships, including partnership.
Case: Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341
Outcome: cited
In order for interests to be common, they need not be identical: Thiess Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341 (an insured/insurer case).
Case: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Outcome: applied
In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279-280, Giles J said: If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege. ... Examples of interest sufficient for common interest privilege can be seen in the cases, but the concept is not rigidly defined and it is a question of fact in each case.
Case: United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1
Outcome: cited
It is not necessary to decide whether documents 5.2 and 5.3 are protected by common interest privilege. It is now common ground that privilege has been waived in relation to them. Subject to the issues canvassed at [17] to [23], in my view common interest privilege attached to the other documents listed at [3] at the time they came into Mr Glover's possession. I accept the applicant's submission that joint venturers are analogous to partners for the purpose of the existence of a common interest. A fiduciary relationship exists between partners. It will often exist between joint venturers. See United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1 at 10-13 and 15-16. As indicated in the cases discussed earlier, "common interest" is not "a rigidly defined concept", and whether it exists in a particular case is a question of fact. Here the evidence, albeit skimpy as the applicant conceded, is that Stage 5 and The Promotions Factory Pty Ltd (Promotions) entered into a joint venture, using the applicant as the joint venture vehicle, to act as the official concessionaire in respect of souvenirs, memorabilia and apparel for the 2006 Commonwealth Games. Mr Glover was provided with copies of the documents in question at about the time each was created in his capacity as a director of Stage 5 and the applicant.
Case: Re Bauhaus Pyrmont Pty Ltd (in liquidation) [2006] NSWSC 543
Outcome: considered
The respondents submit that Mr Glover's claim to "maintain" the privilege is said to derive from Stage 5's shareholding in the applicant, which is then said to give it an interest in the outcome of the proceeding. They contend that it is a question of fact whether, in a particular case, a shareholder has such an interest, and that in a case such as the present, where the applicant is clearly insolvent, no such interest exists because Stage 5's shareholding is valueless. They rely on Re Bauhaus Pyrmont Pty Ltd (in liquidation) [2006] NSWSC 543 ( Bauhaus ). There, one Widdup was a director of the company in liquidation and the indirect owner of all the company's shares. Justice Austin held that Mr Widdup did not have a common interest in privileged documents given to him because there was no prospect of a distribution to contributors in the winding up. 18 The respondents rely on the matters set out at [10] to show that Stage 5 stands in the same position as Mr Widdup in Bauhaus . The applicant sought to distinguish Bauhaus on the ground that it concerned a liquidator of a company giving privileged documents to a shareholder who, at the time of receipt, had no prospect of a return from the winding up. 19 Section 122(5)(b) of the Evidence Act (set out at [11]) excludes the waiver provisions of sub-ss (2) and (4) in relation to a disclosure to a person who, at the time of the disclosure , shared a common interest with the client. Accordingly, I accept the applicant's submission that common interest is to be tested at the time Mr Glover came into possession of the documents. 20 The party claiming privilege has the onus of establishing the basis of the claim. Order 33 rule 11(1) of the Federal Court Rules provides that: Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. (Emphasis added.) 21 The expression "ground of privilege" is defined in rule 11(5) as a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act . That includes common interest privilege. See s 122(5)(b) and Bauhaus at [24]. On onus in relation to client legal privilege in general, see Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 337. The claimant must establish the facts giving rise to the privilege: National Crime Authority v S (1991) 100 ALR 151 at 158-159.
Case: Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332
Outcome: cited
The expression "ground of privilege" is defined in rule 11(5) as a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act . That includes common interest privilege. See s 122(5)(b) and Bauhaus at [24]. On onus in relation to client legal privilege in general, see Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 337. The claimant must establish the facts giving rise to the privilege: National Crime Authority v S (1991) 100 ALR 151 at 158-159.
Case: National Crime Authority v S (1991) 100 ALR 151
Outcome: cited
The expression "ground of privilege" is defined in rule 11(5) as a ground on which a person may rely to make an objection under Part 3.10 of the Evidence Act . That includes common interest privilege. See s 122(5)(b) and Bauhaus at [24]. On onus in relation to client legal privilege in general, see Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at 337. The claimant must establish the facts giving rise to the privilege: National Crime Authority v S (1991) 100 ALR 151 at 158-159.
Case: Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Outcome: cited
Paragraphs 1 and 2 of the notice of motion can be dealt with together. A notice to produce may be set aside on the ground of lack of apparent relevance. The test of apparent relevance is whether the documents are reasonably likely to add, in the end, in some way or another, to the relevant evidence. Relevance in an evidentiary/admissibility sense is not the test. See Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 101-103; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] ; Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [44] - [48] .
Case: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174
Outcome: cited
Paragraphs 1 and 2 of the notice of motion can be dealt with together. A notice to produce may be set aside on the ground of lack of apparent relevance. The test of apparent relevance is whether the documents are reasonably likely to add, in the end, in some way or another, to the relevant evidence. Relevance in an evidentiary/admissibility sense is not the test. See Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 101-103; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] ; Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [44] - [48] .