mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: applied
The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation. 97 The principle now endorsed by the High Court in Esso at [61] is that of the minority judgment of 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: Australian Flight Test Services Pty Ltd v The Minister for Industry, Science and Technology [1996] FCA 1031
Outcome: applied
As to the name of the author, this complaint was made as to the ACCC's original list of documents dated 26 July 2006. The ACCC served a revised list on 27 November 2006 which included, as requested, information setting out "whether the statements were prepared by the ACCC or the AGS or counsel". The ACCC submits, and I accept, that it is not obliged to state the name of the author of each individual discovered document. No authority was cited for that proposition. The purpose of the requirement that a document be described is simply that the other party may know from the description whether or not it should be inspected and so that it can be identified subsequently: Australian Flight Test Services Pty Ltd v The Minister for Industry, Science and Technology [1996] FCA 1031 at 6-7. These requirements have been met in the present case. I note that the number of documents in question in this case is comparatively modest. The descriptions of them in the ACCC's list of documents suggest that the respondents would not be in any quandary as to whether or not to inspect. And they would have no lack of legal manpower to do so, if they were permitted.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: cited
The principle now endorsed by the High Court in Esso at [61] is that of the minority judgment of 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." 101 There was some complaint in the respondents' submissions of the "formulaic" assertion by Mr Alexander and Mr Williams of a dominant purpose. However, I note that in Microsoft at [77] there was criticism of a deponent who had used the adjective "primary". His Honour thought that it was "unsatisfactory that (the witness) has not spoken in the language of dominant purpose". Thus there may be something of a dilemma for witnesses swearing affidavits in support of privilege claims. Witnesses may feel they have to use either the formulaic term "dominant" or search around for some synonym a process which may be equally formulaic. In Grant v Downs at 678 Barwick CJ preferred the word "dominant" to describe the relevant purpose. In his Honour's opinion, neither "primary" nor "substantial' satisfied the true basis of the privilege. So it may be that the formula, however tedious, will continue to be used.
Case: Palmer v The Queen [1998] HCA 2 ; (1988) 193 CLR 1
Outcome: cited
The first three grounds really revolve around the same point. Documents relating purely to credit are not discoverable. In a different context McHugh J, in a dissenting judgment, has criticised any bright line distinction the evidence as to credit and evidence as to the issues: Palmer v The Queen [1998] HCA 2 ; (1988) 193 CLR 1 at [51] et seq. However the Full Court of the Federal Court in Reading Entertainment Australia Pty Ltd v Birch Carroll &amp; Coyle Ltd [2002] FCAFC 109 has reaffirmed the distinction in the context of discovery. Beaumont J at [70] adopted the statement in Butterworths , Practice &amp; Procedure of the Federal Court at [40.760] "Documents which relate only to credit do not relate to a matter in question within the meaning of the traditional formulation." His Honour continued: "This may be seen as an example of the general principle, still valid, that the Court must always be satisfied that any order for discovery (including, as here, a specific order) must be 'reasonably' necessary for the fair disposing of the case."
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: applied
Counsel for the appellant contends that the lawyer's letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] (' Applicant WAEE' )). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant's well-being even after the change of government.
Case: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Outcome: followed
Counsel for the appellant contends that the lawyer's letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] (' Applicant WAEE' )). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant's well-being even after the change of government. 8 I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47] : 'The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.' See also SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [15] to [16], per Moore J, with whom Besanko J expressed substantial agreement at [18]. 9 The last sentence in the quote from Applicant WAEE in the preceding paragraph is particularly relevant to the current issue. The current Tribunal made strong findings rejecting any consideration of a future politically-based threat due to the passage of time. Inferentially, it rejected the thrust of the letter.
Case: SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9
Outcome: cited
I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47] : 'The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.' See also SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [15] to [16], per Moore J, with whom Besanko J expressed substantial agreement at [18].
Case: Todaytech Distribution Pty Ltd v Yu [2004] VSC 246
Outcome: referred to
Although the issues raised by the appeal are straightforward, it is helpful to summarise the factual background. It is set out in some detail in two Supreme Court judgments: see Todaytech Distribution Pty Ltd v Yu [2004] VSC 246 (" Todaytech No 1 ") and Todaytech Distribution Pty Ltd v Yu [2005] VSC 313 (" Todaytech No 2 ").
Case: Todaytech Distribution Pty Ltd v Yu [2005] VSC 313
Outcome: referred to
Although the issues raised by the appeal are straightforward, it is helpful to summarise the factual background. It is set out in some detail in two Supreme Court judgments: see Todaytech Distribution Pty Ltd v Yu [2004] VSC 246 (" Todaytech No 1 ") and Todaytech Distribution Pty Ltd v Yu [2005] VSC 313 (" Todaytech No 2 ").
Case: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Outcome: cited
Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] . 32 In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].
Case: Low v Commonwealth [2001] FCA 702
Outcome: cited
Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] .
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: cited
Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] .
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Outcome: cited
Like appeals to the Full Court from a single judge of this Court, an appeal from a judgment of the Federal Magistrates Court is an appeal by way of re-hearing: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 (" Abeyesinghe ") at [4]; and Low v Commonwealth [2001] FCA 702 at [3] ; see also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 533 [75] ; and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [50] - [54] .
Case: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194
Outcome: cited
The expression 'appeal by way of re-hearing' is used in contradistinction to the expressions 'appeal in a strict sense', and 'appeal by way of hearing de novo '. It is important to bear in mind what these expressions connote. In the case of an appeal in the strict sense, the function of the appellate court is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when the decision below was given. Where an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually described as an appeal by way of re-hearing. An appeal by way of hearing de novo is one in which the matter is heard afresh, and the decision is given on the evidence presented at the appellate hearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 (" Coal and Allied Operations ") at 203 [12]-[13]. 32 In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: cited
In Coal and Allied Operations , at 203-204 [14], the High Court said that statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. A similar observation was made by the Full Court of this Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 432-433 [21] . Thus, it has been said that this Court's appellate powers are only exercisable if the appellant can demonstrate that the orders under appeal are the result of some legal, factual or discretionary error: see Abeyesinghe at [4].
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411
Outcome: referred to
I agree with his Honour. Experience in forensic contests in which it is sought to reveal, even under conditions of strict confidentiality, limited material to one or more legal advisers or representatives of a party, while excluding those persons from communicating with others in the same interest, can create great difficulties for the adviser. It is even harder where that information is communicated to a person such as Mr Hopper who, accepting the highest ideals of the legal profession to act for those who need assistance, act for other persons who are in a similar situation of potential, perceived, or real, risk to security or in litigation involving the question of whether or not their security classifications or other civil rights have been affected by decisions taken in the interests of national security: cp: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 at pp. 415-416 [15] and 417 [19].
Case: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: referred to
Counsel for the applicant faintly put an argument based on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, namely that the decision was one which was so unreasonable that no reasonable decision-maker could have arrived at it. The submission was introduced with the words that counsel had difficulty in making it. I have difficulty in accepting it. 33 In my opinion, the material reveals a perfectly rational basis on which the issue of the certificate was approached. Other minds may have approached it differently and rationally, but it is not the function of the court to interfere unless it can be seen that there is some reason to say that the decision-maker in effect behaved in an irrational way or in a way that was not authorised by law. In my opinion there is no substance in this ground and I reject it. 34 For those reasons I am of opinion the application should be dismissed. [Counsel addressed on costs]
Case: Attorney General v Leveller Magazine Limited [1979] AC 440
Outcome: considered
The problem with secrets is that the revelation of the secret to one person can have the unintended consequence that a cat gets out of the bag. There are cases in the books in which this has happened. One very well known example is Attorney General v Leveller Magazine Limited [1979] AC 440 in which a Colonel in the MI5 gave evidence under a pseudonym and in circumstances where it was intended that his identity not be revealed. But, by setting out his own circumstances and qualifications in giving his evidence in open court other persons were able, outside the court, to put two and two together and, as Lord Russell of Killowen colourfully said: ' [t]he gaff was already blown by the deposition ' ([1979] AC 440 at p. 468 F-G). In effect, the cat was out of the bag.
Case: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: cited
The courts have a duty to view governmental secrets through different spectacles to those with which they would view private information: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at p. 31 per Mason CJ. There his Honour said: 'This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure.'
Case: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
In my opinion, the considerations that the submissions made to the Attorney-General reveal about the potential but unsubstantiated risk that Mr Hopper might inadvertently disclose information were not an irrelevant consideration. The subject matter, scope and purpose of each of sections 36, 39A and 39B indicate that the Minister has an unconfined discretion to have regard to what he, as a high officer of the Executive, considers is in the public interest and may prejudice the security of Australia: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at p. 40 per Mason J; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at pp. 49-50.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
The argument before me has tended to centre on the provisions of section 39A subsections (8) and (9), particularly because it is in those provisions that some exception to the blanket effect of a certificate can be made if the Attorney-General is prepared to consent to a person representing an applicant before the Tribunal being present when evidence is adduced or submissions made that are the subject of the certificate. However, each part of the statute must be construed separately, although the court will try to give an harmonious meaning to it as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at pp. 381-382 [69]-[71] and 384 [78]. 15 Critically, each of the three empowering provisions authorises the Attorney-General to certify in writing that the disclosure of information concerning a specified matter or the disclosure of any matter contained in a document will be contrary to the public interest by reason that it would prejudice the security of Australia. Each provision then provides consequences as to the effect of the certificate when so given.
Case: Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45
Outcome: applied
In my opinion, the considerations that the submissions made to the Attorney-General reveal about the potential but unsubstantiated risk that Mr Hopper might inadvertently disclose information were not an irrelevant consideration. The subject matter, scope and purpose of each of sections 36, 39A and 39B indicate that the Minister has an unconfined discretion to have regard to what he, as a high officer of the Executive, considers is in the public interest and may prejudice the security of Australia: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at p. 40 per Mason J; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at pp. 49-50.