mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 
Outcome: followed
was no great disagreement between counsel as to the principles to be applied in this matter. One threshold matter needs to be considered, namely, the operation, if any, of O 33 r 11 of the Federal Court Rules . I was referred to the decision of Graham J in Seven Network Ltd v News Ltd [2005] FCA 864 at [57] [59] in which, in similar circumstances, it was held that O 33 r 11 would apply and doubt was cast upon what I had said in Arrow Pharmaceuticals Ltd v Merck &amp; Co Inc (2004) 210 ALR 593 at [10]. Leave to appeal against the decision of Graham J was granted and, although the appeal was dismissed, the Full Court made clear that O 33 r 11 did not operate at the point of pretrial production of documents, effectively overruling the decision of Graham J in that respect ( Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379). As this dispute is essentially about discovery and inspection it is clear, in my opinion, that the question of privilege is to be governed by the common law as defined in Esso Australia Resources Ltd v Commissioner of Taxation (Commonwealth) [1999] HCA 67 ; (1999) 201 CLR 49 rather than by the provisions of the Evidence Act 1995 (Cth). The classic statement of the dominant purpose test, which is now accepted, was that by Barwick CJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 (at 677): 'a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.'
Case: Sparnon v Apand Pty Ltd (1996) 68 FCR 322
Outcome: cited
given by a person involved in the making of the document is not decisive as to the purpose for which the document came into existence (per Branson J in Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328A. That is an objective question ( Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 548E). The onus is on the party claiming the privilege to make it out ( Mitsubishi at [11]).
Case: Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045
Outcome: cited
Mr Sheahan SC, on behalf of the applicants, recognises that masking for irrelevance is specifically contemplated by the discovery orders. He also recognises that, while an unqualified order for discovery may require a party to produce unmasked copies of all partially relevant documents unless the Court grants relief from the requirement, it was appropriate for Telstra in the present case to mask the truly irrelevant portions of discovered documents: cf Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 , at [9], [14]-[15], per Branson J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 , at [12]-[13], per Selway J; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 , at [16] ff, per Sundberg J, and authorities cited there.
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353
Outcome: cited
Mr Sheahan SC, on behalf of the applicants, recognises that masking for irrelevance is specifically contemplated by the discovery orders. He also recognises that, while an unqualified order for discovery may require a party to produce unmasked copies of all partially relevant documents unless the Court grants relief from the requirement, it was appropriate for Telstra in the present case to mask the truly irrelevant portions of discovered documents: cf Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 , at [9], [14]-[15], per Branson J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 , at [12]-[13], per Selway J; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 , at [16] ff, per Sundberg J, and authorities cited there.
Case: Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335
Outcome: cited
Mr Sheahan SC, on behalf of the applicants, recognises that masking for irrelevance is specifically contemplated by the discovery orders. He also recognises that, while an unqualified order for discovery may require a party to produce unmasked copies of all partially relevant documents unless the Court grants relief from the requirement, it was appropriate for Telstra in the present case to mask the truly irrelevant portions of discovered documents: cf Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 , at [9], [14]-[15], per Branson J; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 , at [12]-[13], per Selway J; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 , at [16] ff, per Sundberg J, and authorities cited there.
Case: EMI Resources Ltd v Spillane (1986) 1 WLR 967
Outcome: cited
for ThoughtWeb Systems referred me to what Lord Diplock said in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300: 'The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.' Later, in a passage which has subsequently been cited, e.g., see EMI Resources Ltd v Spillane (1986) 1 WLR 967 at 972, his Lordship said (at 304 305): '... An order for production of documents to a solicitor on behalf of a party to civil ligation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court.'
Case: Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162
Outcome: referred to
Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162, Mansfield J, after referring to what Lord Diplock had said in Harman in the first extract in [12] above, said (at 166): 'The duty which is therefore placed upon the recipient of documents procured in the course of discovery arises because, absent the proceedings, there is no entitlement to those documents. They are private. They need not necessarily contain confidential or commercially sensitive material to have that quality. It exists because of the nature of the documents, and the circumstances in which they came to be released to the other party, and not necessarily because of their contents.'
Case: Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: referred to
is now well established that the release or modification of the implied undertaking will not be lightly given. In Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 37, Brennan J stated: 'That dispensing power is not freely exercised, but it will be exercised when special circumstances appear. In the Federal Court, special circumstances have been held to exist where "there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present." It is unnecessary to consider whether the dispensing power should be so broadly defined. It is relevant to note only that the obligation enforceable as an undertaking to the Court in the case of a curial order is not unqualified.'
Case: Halcon International Inc v Shell Transport &amp; Trading Co . [1979] RPC 97
Outcome: referred to
Halcon International Inc v Shell Transport &amp; Trading Co . [1979] RPC 97, Whitford J stated (at 109 110) that: 'However, these authorities to my mind, lead to this conclusion, that the use of a document disclosed in a proceeding in some other context, or even in another proceeding between the same parties in the same jurisdiction, is an abuse of process unless there are very strong grounds for making an exception to the general rule. It does, I think, emerge that some overriding public interest might be a good example, but not the mere furtherance of some private interest even where that private interest arises directly out of or is brought to light as a result of the discovery made.'
Case: Minister for Education v Bailey (2000) 23 WAR 149
Outcome: considered
authorities were considered exhaustively by the Full Court of the Supreme Court of Western Australia in Minister for Education v Bailey (2000) 23 WAR 149; [2000] WASCA 377. At [20] , Steytler J, with whom Parker J concurred, stated: 'More recently, in Prudential Assurance Co Limited v Fountain Page Limited [1991] 1 WLR 756 at 775, Hobhouse J, while acknowledging that the Court has the power wholly or partially to release the recipient of discovered documents from the duty, or undertakings, and to permit use to be made of the documents, said that circumstances under which the relaxation would be allowed without the consent of the serving party were "hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party" subject to any overriding principle of public policy.' Steytler J then turned to consider a number of Australian authorities. One of those was Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 where, at 578, Burchett J stated: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... if all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.' After reviewing that case and others, Steytler J stated at [28]: 'It is against this background that the courts have concluded that the implied undertaking or obligation will only be waived or relaxed when special circumstances are present. While I would not, with great respect, have thought that circumstances of that kind would be quite so hard to visualise as Hobhouse J expressed them to be in Prudential Assurance , the fact remains that it will ordinarily be no easy matter to secure the court's indulgence.'
Case: Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217
Outcome: applied
Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217, Wilcox J explained what is meant by the term 'special circumstances' in these terms (at 225): 'For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.' If that be right then his case that he needs the use of the documents for which leave is sought to prove that ThoughtWeb Systems is insolvent has a hollow ring about it. Even if that be wrong, I am not persuaded that the documents, in respect of which leave is sought to use in winding up proceedings against ThoughtWeb Systems, are likely to contribute to achieve justice in such proceedings, '... perhaps [the] most important of all [of the special circumstances to be considered]': Wilcox J in Springfield Nominees , supra, at 225.
Case: Australian Securities and Investment Commission v Marshall Bell Hawkins Limited [2003] FCA 833
Outcome: referred to
conclusion referred to in [22] supra also informs the obligation of a party applying for a modification or release of the undertaking to specify the documents in respect of which the modification or release is sought. In Australian Securities and Investment Commission v Marshall Bell Hawkins Limited [2003] FCA 833 at [13] , Merkel J stated in this regard: 'The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so: see Springfield Nominees at 225 and Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173 at 176. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.'
Case: Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028 
Outcome: related
On 12 June last I made orders under s 447A of the Corporations Act 2001 (Cth) (the Act) in relation to an extension of the "decision period" provided for by s 441A(1)(b) ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 15 June last I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Act to midnight on 23 July 2007. I reserved consideration of any application to further extend that period indicating that, if a case were made out, I would exercise the power provided for by s 447A to achieve that end. Reasons for that decision were given together with reasons in relation to an extension of the convening period in relation to the related Estate Property group of companies (the Group) ( Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935). Those various judgments, together with the judgment relating to the Estate Property group of companies to be handed down contemporaneously with these reasons ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329) , explain the background to this application, which need not be repeated here.
Case: Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935
Outcome: related
On 12 June last I made orders under s 447A of the Corporations Act 2001 (Cth) (the Act) in relation to an extension of the "decision period" provided for by s 441A(1)(b) ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 15 June last I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Act to midnight on 23 July 2007. I reserved consideration of any application to further extend that period indicating that, if a case were made out, I would exercise the power provided for by s 447A to achieve that end. Reasons for that decision were given together with reasons in relation to an extension of the convening period in relation to the related Estate Property group of companies (the Group) ( Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935). Those various judgments, together with the judgment relating to the Estate Property group of companies to be handed down contemporaneously with these reasons ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329) , explain the background to this application, which need not be repeated here.
Case: Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329
Outcome: related
On 12 June last I made orders under s 447A of the Corporations Act 2001 (Cth) (the Act) in relation to an extension of the "decision period" provided for by s 441A(1)(b) ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 15 June last I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Act to midnight on 23 July 2007. I reserved consideration of any application to further extend that period indicating that, if a case were made out, I would exercise the power provided for by s 447A to achieve that end. Reasons for that decision were given together with reasons in relation to an extension of the convening period in relation to the related Estate Property group of companies (the Group) ( Hayes, in the matter of Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935). Those various judgments, together with the judgment relating to the Estate Property group of companies to be handed down contemporaneously with these reasons ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 1329) , explain the background to this application, which need not be repeated here.
Case: Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2004] FCA 1334
Outcome: referred to
The decision to order security for costs is discretionary and it is well accepted that the Court's discretion in this matter is unfettered. There are however, general principles that guide the Court in the exercise of its discretion. These were set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and repeated by French J in Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2004] FCA 1334 at [28] as follows: "1. Whether the application for security has been brought promptly. 2. The strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct the subject of the claim. 4. Whether the respondent's application for security is oppressive in the sense that it is being used merely to deny an impecunious applicant a right to litigate.
Case: Cowell v Taylor (1885) 31 Ch D 34
Outcome: referred to
Whether the applicant is in substance a plaintiff or the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the respondent's self-help procedures." The present circumstances 5 It is common ground between the parties that Horizon's liabilities considerably exceed its assets and that it would be unable to meet a costs order in favour of the respondents. The respondents accept that impecuniosity, of itself, is not a sufficient reason to order security ( Cowell v Taylor (1885) 31 Ch D 34 at 38) however the inability of an applicant to meet the costs of a successful respondent not only "opens the jurisdiction for the giving of security" but is also a significant consideration in the exercise of the Court's discretion: Pearson v Naydler [1977] 1 WLR 899 at 906; Rosenfield Nominees v Bain &amp; Co (1988) 14 ACLR 467 at 470. 6 The respondents submit, however, that there is an additional reason why Horizon's impecuniosity should weigh heavily in the Court's consideration of their application. They allege that it is the result of calculated and deliberate conduct directed towards frustrating the processes of the Court. The respondents submit that statements made by officers of Horizon, indicating an intention to strip the company of its assets so that there would be no assets available to meet claims made by the respondents, invite this conclusion. 7 In support of their application the respondents relied on affidavits made by employees of GlobeCast, namely: Nitish Gawde, Direct to Home Broadcast Manager and Mike Lattin Chief Executive Officer. Both gentlemen gave evidence of comments made by Mr Seymon Pinchuk, a director of Horizon at meetings on 27 April and 19 May 2006, in the course of discussions about the disputed invoices. In response to demands made by GlobeCast for Horizon to pay the amounts in the disputed invoices, Mr Pinchuk is alleged to have threatened to "wind up" or "bankrupt" or "close down" the company so that no one would be paid. They also claimed that Mr Pinchuk referred to Horizon as "just a $2 company" or said that he would "make it" a $2 company.
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: referred to
The decision to order security for costs is discretionary and it is well accepted that the Court's discretion in this matter is unfettered. There are however, general principles that guide the Court in the exercise of its discretion. These were set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and repeated by French J in Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd [2004] FCA 1334 at [28] as follows: "1. Whether the application for security has been brought promptly. 2. The strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct the subject of the claim. 4. Whether the respondent's application for security is oppressive in the sense that it is being used merely to deny an impecunious applicant a right to litigate.