mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: cited
obligation to prove that a communication is privileged rests with the party asserting privilege: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689. That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents: National Crime Authority v S (1991) 29 FCR 203 at 211. That is especially so where, as in this case, the assertion in the affidavit wrongly describes the privilege as belonging to the applicants rather than to Bankers Trust.
Case: Packer v Deputy Federal Commissioner of Taxation (1984) 84 ATC 4666
Outcome: cited
Packer v Deputy Federal Commissioner of Taxation (1984) 84 ATC 4666 at 4672, McPherson J said that communication may be privileged even though it is both not intended for use in litigation and not strictly speaking made for the purposes of legal advice but the purposes of providing legal assistance, eg, draft conveyances and the like: Mostyn v West Mostyn Coal Co (1876) 34 LT 531, although they are not perhaps legal advice in a literal sense."
Case: AWB Ltd v Cole [2006] FCA 571
Outcome: cited
AWB Ltd v Cole [2006] FCA 571 at [86] , Young J referred to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317 at 330, where Taylor LJ (with whom Lord Donaldson MR and Parker LJ concurred) said: obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client. ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. ' added)
Case: Balabel v Air India [1988] Ch 317
Outcome: applied
AWB Ltd v Cole [2006] FCA 571 at [86] , Young J referred to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317 at 330, where Taylor LJ (with whom Lord Donaldson MR and Parker LJ concurred) said: obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client. ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. ' added) Counsel for the applicants described documents 1780 and 1898 respectively as "pro forma matters to be attended to by the board in order to pass certain resolutions, to give effect to approvals by the board to enter into particular legal transactions" and a list of "a number of matters that has to be attended by the board, for the purpose of giving effect to or making effective, particular resolutions" . I accept that such documents, while not formal opinions of the law, may constitute legal advice and, if prepared for that dominant purpose, may attract legal professional privilege. They may be, to adopt the words used in Balabel , "advice as to what should prudently and sensibly be done in the relevant legal context" .
Case: Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266
Outcome: cited
well as considering whether the Tiffen documents constitute legal advice, I must also consider whether the provision of legal advice was the dominant purpose of their creation. Many adjectives have been used in an attempt to identify the dominant purpose of a communication. For present purposes it is sufficient to note that a dominant purpose is one that is of greater importance than any other: see Federal Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 478. The respondent submits that the dominant purpose of document 1898 appears to be the convening of a meeting to discuss identified matters. He makes no submission on what the dominant purpose of document 1780 is, save to say that the applicants have failed to discharge their burden of demonstrating that the dominant purpose test is satisfied. Having considered the Tiffen documents in light of the above principles, I have formed the view that each of them is subject to legal professional privilege. It is true that each of them each of them has a "corporate governance" purpose, but I am satisfied that this is not the dominant purpose of the communications contained within the documents but rather is the context in which the legal advice was given. I accept that the descriptions of the documents given to the Court by counsel for the applicants and set out at [37] are generally accurate and reflect the dominant purposes for which they were prepared. Accordingly, I will grant the applicants relief from production of documents 1780 and 1898 on the grounds that the are the subject of legal professional privilege.
Case: Consolidated Byrnes Holdings Limited ACN 111 052 585 v Hardel Investments Pty Limited ACN 083 276 000 [2009] FCA 399
Outcome: referred to
reasons which relate to the costs of the proceeding should be read in conjunction with the reasons given today in Consolidated Byrnes Holdings Limited ACN 111 052 585 v Hardel Investments Pty Limited ACN 083 276 000 [2009] FCA 399. Those proceedings were brought on 28 March 2008 by Consolidated Byrnes Holdings Limited (CBH) and Alpha Asset Group Pty Ltd (Alpha) to wind up Hardel Investments Pty Limited (Hardel) and Avpri Pty Limited (Avpri) (the winding up proceedings). CBH and Alpha relied upon the presumption of insolvency created in the Corporations Act 2001 (Cth) (the Corporations Act ) when a "corporation had failed to comply with a statutory demand served upon it": s 459C(2)(a). In the winding up proceedings CBH and Alpha claimed that they had served statutory demands upon Hardel and Avpri on 18 December 2007 for debts which were then due and payable together with an affidavit that verified that the debts were then due and payable: s 459E(2) and s 459E(3). They claimed to be entitled to the debts by way of assignment dated 17 December 2007 from Contor Developments Pty Ltd (Contor) and Cobra Services Pty Ltd (Cobra): s 459E(4). Hardel and Avpri claimed in the winding up proceedings that they did not receive or were not served with any statutory demand prior to the issue of the winding up proceedings on 28 March 2008 or service of the winding up proceedings on 7 April 2008. They also claimed that there was a dispute as to whether any monies were owed to Contor or Cobra. Hardel and Avpri disputed the claim that they were insolvent. Further, they disputed that if there were debts they had been validly assigned to CBH and Alpha.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24
Outcome: cited
In his original application to the Federal Magistrates Court, three grounds of review were specified. They were as follows: "(1) The Tribunal had bias against me , the Tribunal mentioned: 'The Applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The JApplicant [sic] was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker . ' I believe the above statement was by actual bias of the officer. (2) THe [sic] Tribunal failed to consider my claims because I provided different claims at my hearing invited by the Tribunal. (3) The Tribunal did not provide sufficient reasons to refuse my application." Those grounds were apparently abandoned when an amended application was filed in the Federal Magistrates Court on 24 May 2006. The grounds in the amended application were as follows: "(1) The Tribunal failed to carry out its statutory duty. Particulars: (a) the only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the applicant. (b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision ... (c) The above particulars had to be provided in writing ..., (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required by section 424A , to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure so to act was jurisdictional error." The words that I have omitted were quotations from the reasons of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27.
Case: Minister for Immigration &amp; Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: cited
In his original application to the Federal Magistrates Court, three grounds of review were specified. They were as follows: "(1) The Tribunal had bias against me , the Tribunal mentioned: 'The Applicant's claims are entirely dependent upon an acceptance of him as a credible witness. The JApplicant [sic] was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker . ' I believe the above statement was by actual bias of the officer. (2) THe [sic] Tribunal failed to consider my claims because I provided different claims at my hearing invited by the Tribunal. (3) The Tribunal did not provide sufficient reasons to refuse my application." Those grounds were apparently abandoned when an amended application was filed in the Federal Magistrates Court on 24 May 2006. The grounds in the amended application were as follows: "(1) The Tribunal failed to carry out its statutory duty. Particulars: (a) the only information before the Tribunal was that contained in the First Respondent's file and that given to the Tribunal by the applicant. (b) The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision ... (c) The above particulars had to be provided in writing ..., (d) The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa. (e) The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required by section 424A , to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure so to act was jurisdictional error." The words that I have omitted were quotations from the reasons of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27.
Case: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Outcome: referred to
Under s 501(6) a person does not pass the character test if he or she has a substantial criminal record. It is not in dispute that Mr Gilbert has a substantial criminal record. In Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246 a Full Court, by way of obiter dicta , observed that the power conferred on the Minister to cancel a visa only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. So when an absorbed person visa is cancelled the transitional (permanent) visa held by that person is also cancelled. However, the Full Court considered in Moore that that process could not operate in reverse. That is because, so it said, the transitional (permanent) visa is a visa which is not granted or deemed to be granted to a person but is held by a person as a result of the operation of the Transitional Regulations. 29 Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Outcome: applied
The "criminal record" can only record charged acts where the person concerned has been found guilty. Even so, the Minister is entitled, in deciding whether or not to cancel the visa of a person who he suspects does not pass the character test, to take into account various matters in the exercise of his discretion. As counsel for the respondent submitted, once s 501(2) is engaged, the considerations relevant to the exercise of the discretion are very wide, see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606, per Heydon and Crennan JJ where their Honours said: Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community. (Emphasis added.) 42 It was, at least, open to the Minister to take into account uncharged acts. Such matters may be relevant to the risk of Mr Gilbert re-offending in the future. 43 Having regard to the foregoing it is appropriate to order that the application is dismissed and that the applicant pay the respondent's costs of the proceeding. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 23 January 2008 Counsel for the Applicant: Mr G Hughan Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Dr S Donaghue Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 December 2007 Date of Judgment: 23 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/16.html
Case: Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387
Outcome: referred to
Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).
Case: Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544
Outcome: referred to
Contrary views to those contained in Moore in the above respect, have been expressed in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415 ; (2000) 97 FCR 387 (per Finkelstein J) and Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 (per Dowsett J).
Case: MZYAV v Minister for Immigration and Anor [2008] FMCA 1728
Outcome: affirmed
appeal is from a judgment of the Federal Magistrates Court, given on 15 December 2008 and published as MZYAV v Minister for Immigration and Anor [2008] FMCA 1728. The learned federal magistrate dismissed an application seeking review of a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent to the appeal. The Tribunal dismissed an application for review of a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to the appeal, refusing to grant to the appellant a protection visa. The appellant is a citizen of Sri Lanka. He arrived in Australia on 23 September 2007. On 2 November 2007 he applied for a protection visa. The decision of the Minister's delegate was given on 14 January 2008. The appellant then applied to the Tribunal for review of the decision of the Minister's delegate. On 18 March 2008, the Tribunal conducted a hearing at which the appellant attended and was represented by a migration agent. The Tribunal's decision was signed on 7 May 2008 and handed down or sent to the appellant on 21 May 2008. The appellant applied to the Federal Magistrates Court on 6 June 2008. He filed an amended application on 21 July 2008. His application was listed for hearing on 13 November 2008 but was adjourned until 15 December 2008 to enable the appellant to consider his case and seek legal advice. He appeared without representation at the hearing on 15 December 2008. The federal magistrate dismissed the appellant's application and ordered that he pay the Minister's costs, fixed at $5,000. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two documents, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
Case: ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302
Outcome: applied
No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]). 130 Ordinary and reasonable doctors so misled would not be insignificant in number or proportion. I am not satisfied that ordinary and reasonable doctors, including general practitioners not specialised in hypertension and the mechanisms of blood pressure regulation, would generally have been aware of the Europa study and so discount the message otherwise conveyed by the advertisement, as did Drs Barlow and Ferrari. Indeed, Dr Flecker acknowledged that doctors might have thought that Coversyl was only listed in relation to its previously established indication of hypertension. The fact that some doctors reading the advertisement might be aware of the Europa trial and its results, or were otherwise aware that perindopril erbumine had been indicated both for hypertension and for stable coronary artery disease since 2003, does not preclude the statements in the second whole page advertisement being misleading ( ConAgra at 543 per French J). 131 It follows that the representation conveyed by the second whole page advertisement is misleading or likely to mislead doctors in its reference to "now indicated for stable coronary artery disease". By linking that statement to perindopril arginine, the advertisement represents that perindopril erbumine is not so indicated. That also amounts to a misrepresentation, as perindopril erbumine has been so indicated since 2005. 132 Servier has undertaken not to place for publication any advertisement which contains the words "Now indicated for stable coronary heart disease" or any substantially similar phrase which contains the word "now", until determination of this matter.