mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: cited
There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined.
Case: Corrs Pavey Whiting &amp; Byrne v Collector of Customs (Vic) &amp; Anor (1987) 14 FCR 434
Outcome: cited
In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (Vic) &amp; Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd &amp; Anor v Scott &amp; Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy &amp; Ormiston JJ at 711).
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: cited
In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (Vic) &amp; Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd &amp; Anor v Scott &amp; Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy &amp; Ormiston JJ at 711).
Case: Liberty Financial Pty Ltd &amp; Anor v Scott &amp; Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629
Outcome: cited
In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (Vic) &amp; Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd &amp; Anor v Scott &amp; Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy &amp; Ormiston JJ at 711).
Case: Pioneer Concrete Service Ltd v Galli (1985) VR 675
Outcome: cited
In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (Vic) &amp; Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd &amp; Anor v Scott &amp; Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy &amp; Ormiston JJ at 711).
Case: Flentjar v Repatriation Commission (1977) 48 ALD 1
Outcome: referred to
The Tribunal referred to the reasons for judgment of Branson J (with whom Beaumont and Merkel JJ agreed) in Flentjar v Repatriation Commission (1977) 48 ALD 1, where her Honour said that s 24(1)(c) of the Act raised four questions: 1 What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s 24(1)(c) of the Act? 2 Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3 If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4 If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? 28 The appellant submits that the line of reasoning adopted by the Tribunal involved the following steps. 29 First, as stated previously, the Tribunal found that the remunerative work that the respondent was undertaking within the terms of s 24(1)(c) was that as a truck driver, fork-lift driver, driver, storeman, process worker, labourer and general hand. 37 First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4.
Case: Banovich v Repatriation Commission (1986) 69 ALR 305
Outcome: referred to
First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4. 39 In view of the last point, some general matters about the scope and operation of s 24(1)(c) should be noted. First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word 'alone', and the issue is to be approached in a practical, common-sense, fashion. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said (at 538-539): 'I was referred to the Tribunal decision of Davies J, then President of the Tribunal, in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571. Davies J there cited passages from Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122, and Re Apthorpe and Repatriation Commission (1986) 9 ALN N157, a Tribunal decision, each of which emphasises that what must prevent the veteran from continuing to undertake remunerative work, in order to satisfy par (c), must be the war-related incapacity, and that incapacity alone. As was pointed out in Lucas 's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. But Davies J went on to say: "I would not, however, substitute for the word "alone" the description "sole, unique and absolute cause" as stated in Re Repatriation Commission and Cavell (unreported, No 2891, 19 September 1986) ... . In the absence of ambiguity, other words should not be used in place of the words used by the legislation." With respect, I entirely concur in the comment made by Davies J. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the Tribunal to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.'
Case: Starcevich v Repatriation Commission (1987) 18 FCR 221
Outcome: referred to
First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4.
Case: Doig v Repatriation Commission (1996) (unreported, Federal Court of Australia, Lindgren J, 18 December 1996)
Outcome: referred to
First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4. 38 Secondly (and this is perhaps no more than the development of the first point), the issue requires the decision maker to identify the 'substantive remunerative work' that the veteran has undertaken in the past: Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], or the 'substantial remunerative work that he has undertaken in the past': Starevich v Repatriation Commission (supra) per Fox J at 225. Thirdly, in Doig v Repatriation Commission (supra), Lindgren J said that the appropriateness of any particular description of work that has been undertaken is governed by the purpose of the description, and in cases under s 24(1)(c), that purpose is one related to capacity to work.
Case: Repatriation Commission v Hendy (2002) 76 ALD 47
Outcome: referred to
Secondly (and this is perhaps no more than the development of the first point), the issue requires the decision maker to identify the 'substantive remunerative work' that the veteran has undertaken in the past: Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], or the 'substantial remunerative work that he has undertaken in the past': Starevich v Repatriation Commission (supra) per Fox J at 225. Thirdly, in Doig v Repatriation Commission (supra), Lindgren J said that the appropriateness of any particular description of work that has been undertaken is governed by the purpose of the description, and in cases under s 24(1)(c), that purpose is one related to capacity to work. 40 Secondly, factors other than war-caused injuries may be relevant, even if they are not of themselves sufficient to prevent the veteran undertaking remunerative work he or she was undertaking: Repatriation Commission v Hendy (supra) at 54 [37]. 41 Of course, in addition to showing that the war-caused injuries alone prevented the veteran from continuing to undertake remunerative work, the veteran must show that, by reason of being prevented from undertaking remunerative work, he or she is suffering a loss of salary or wages, or of earnings on his or her own account that the veteran would not be suffering if the veteran were free of that incapacity. 42 It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran's qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time.
Case: Cavell v Repatriation Commission (1988) 9 AAR 534
Outcome: referred to
In view of the last point, some general matters about the scope and operation of s 24(1)(c) should be noted. First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word 'alone', and the issue is to be approached in a practical, common-sense, fashion. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said (at 538-539): 'I was referred to the Tribunal decision of Davies J, then President of the Tribunal, in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571. Davies J there cited passages from Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122, and Re Apthorpe and Repatriation Commission (1986) 9 ALN N157, a Tribunal decision, each of which emphasises that what must prevent the veteran from continuing to undertake remunerative work, in order to satisfy par (c), must be the war-related incapacity, and that incapacity alone. As was pointed out in Lucas 's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. But Davies J went on to say: "I would not, however, substitute for the word "alone" the description "sole, unique and absolute cause" as stated in Re Repatriation Commission and Cavell (unreported, No 2891, 19 September 1986) ... . In the absence of ambiguity, other words should not be used in place of the words used by the legislation." With respect, I entirely concur in the comment made by Davies J. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the Tribunal to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.'
Case: Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1
Outcome: referred to
Tribunal concluded that the kind of fear which the appellant so described is a "daily reality" for all Israelis. It noted that, following the decision of the High Court in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1 , a person does not fear persecution for a Convention reason if the fear is one of generalised violence, internal turmoil or civil war where that person or her immediate family is not personally attacked for a particular Convention reason. Hence, although it accepted her fear about living in an environment of tension and uncertainty, it was not satisfied that her fear was a fear of persecution for a Convention reason. The generalised violence, which she feared, would not impact differentially upon her due to her civil or political status, that is the basis upon which she made claims to have been a refugee.
Case: Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834
Outcome: discussed
then added, in the passage to which attention was drawn on the appeal, the following: Secondarily, the applicant drew attention to legal obligations required of her to serve in the Israeli army in the future, when she will be exposed to more danger. The Tribunal notes that independent country information corroborates the explanation of compulsory military service given by the applicant. The Tribunal notes that the enforcement of laws providing for compulsory military service (and for punishment of desertion or avoidance of such service) does not provide a basis for a claim of persecution within the meaning of the Convention: Mijoljevic v MIMA [1999] FCA 834. The Tribunal finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application. The appeal before the Federal Magistrate concentrated on that particular passage. The contention was that the Tribunal had failed to identify that the appellant had made a claim to have been a conscientious objector, that is to have conscientiously objected to undertaking compulsory military service or further military service in Israel, and that as a result she may be persecuted by the Israeli authorities. The Federal Magistrate pointed out that the Tribunal had not accurately reflected the observations of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 in that passage. Her Honour in that decision at [23] said that it is ordinarily the case that a basis for a claim of persecution within the meaning of the Convention will not flow from the enforcement of laws providing for compulsory military service, or for the punishment of those who avoid such service. The Federal Magistrate then referred to the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 , in particular at [28] where Gray J said: The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason.
Case: Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150
Outcome: discussed
Federal Magistrate pointed out that the Tribunal had not accurately reflected the observations of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 in that passage. Her Honour in that decision at [23] said that it is ordinarily the case that a basis for a claim of persecution within the meaning of the Convention will not flow from the enforcement of laws providing for compulsory military service, or for the punishment of those who avoid such service. The Federal Magistrate then referred to the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 , in particular at [28] where Gray J said: The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason.