mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239
Outcome: referred to
principles have been applied in many cases. Not surprisingly the Respondents place reliance on cases, such as BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 and Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85 in which the Court granted applications to transfer; and the Applicants drew attention to cases such as Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 and Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 in which transfer applications were refused. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. They included the questions of whether pleadings had closed and whether the witnesses to be called at trial were known at the time at which the application was made.
Case: BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807
Outcome: referred to
principles have been applied in many cases. Not surprisingly the Respondents place reliance on cases, such as BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 and Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85 in which the Court granted applications to transfer; and the Applicants drew attention to cases such as Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 and Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 in which transfer applications were refused. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. They included the questions of whether pleadings had closed and whether the witnesses to be called at trial were known at the time at which the application was made.
Case: Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85
Outcome: referred to
principles have been applied in many cases. Not surprisingly the Respondents place reliance on cases, such as BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 and Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85 in which the Court granted applications to transfer; and the Applicants drew attention to cases such as Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 and Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 in which transfer applications were refused. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. They included the questions of whether pleadings had closed and whether the witnesses to be called at trial were known at the time at which the application was made.
Case: Lamb v Hogs' Breath Co Pty Ltd (No 1) [2007] FCA 49
Outcome: cited
are, plainly, issues relating to discovery and inspection which will, most conveniently, be attended to through the Western Australian District Registry in Perth. That is not a reason for transferring the proceeding at this stage. In my view the considerations which informed the decision of French J in Lamb v Hogs' Breath Co Pty Ltd (No. 1) [2007] FCA 49 are (with some changes to place names and a minor omission) equally apposite in the present circumstances. His Honour said (at [9]-[11]) that: "[9] ... So far as the interlocutory processes are concerned, unless some unusual circumstances occur, it matters little whether the proceeding is in the Perth or [Melbourne] Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that. The question of travel between Perth and [Melbourne], raised by the parties is, in my opinion, of little relevance at this stage of the proceeding. The question of transfer does not impact on the question of the place of the trial nor, ultimately, the judge who conducts the trial. [10] The docket system ...offers the advantage of continuity in case management, at least up to the point of trial. While ordinarily the docket judge will hear the trial of the action which he or she has been managing, it is not unusual for there to be cases in which the trial is allocated to another judge for reasons of convenience. So it might be that if this case were not to be transferred but it were thought that it would be most conveniently heard and determined in [Perth], a judge from the [Western Australia] Registry could hear the case without having been involved in the pre-trial case management. Much will depend upon the geographical distribution of the witnesses and it may be that part of the trial will be conducted in one centre and part in another. It is too early to make a determination about that. [11] So far as the return of subpoenas to produce documents is concerned, production can readily be directed to the Registry most conveniently located from the viewpoint of those who have to respond to those subpoenas. Those are all case management matters which can be dealt with in due course." In my view the preferable course is for me, as docket Judge, to continue to direct the pre-trial management of the proceeding. This will not disadvantage any party. The first two hearings were conducted in Melbourne. The hearing of the present application has taken place in Perth this morning. On each occasion the representatives of the parties who were not present in Court were heard by video-link. There is no reason why such arrangements cannot continue to be made. The Respondents' concern relating to the inspection of documents can be met by a regime under which that inspection takes place in Perth. If need be the facilities of the local Registry can be made available.
Case: ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806
Outcome: cited
exercising its supervisory jurisdiction under Pt 9 of the Act, the Court has a discretion to refuse a scheme or confirm it with or without modification (s 194). Confirmation of a scheme pursuant to s 194 is not a mere formality ( ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806 at [4] ). The Court must have regard to the object of protecting the interests of policy holders ( Re Royal at [3]). It must ensure that the scheme will not be prejudicial to the interests of policy holders and that policy holders are properly safeguarded ( NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] ).
Case: NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635
Outcome: cited
exercising its supervisory jurisdiction under Pt 9 of the Act, the Court has a discretion to refuse a scheme or confirm it with or without modification (s 194). Confirmation of a scheme pursuant to s 194 is not a mere formality ( ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806 at [4] ). The Court must have regard to the object of protecting the interests of policy holders ( Re Royal at [3]). It must ensure that the scheme will not be prejudicial to the interests of policy holders and that policy holders are properly safeguarded ( NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] ).
Case: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160
Outcome: cited
did not consider that delay to be fatal to the applications ( Re Royal at [18]; Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162). The Notices were published in New South Wales in three other approved newspapers prior to the public inspection period. Public inspection of the schemes was also extended in New South Wales from 8 September 2006 to 12 September 2006 to compensate for the delay in publication in the Daily Telegraph . For these reasons, I was satisfied that the delay did not adversely affect policy holders.
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37
Outcome: cited
principal object of the Act is to protect the interests of owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry (s 3(1)). One means adopted to achieve this objective is the regime in Pt 9 of the Act for supervision of the transfer or amalgamation of life insurance businesses by the Court (s 3(2)(f) ; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at [3] ). In exercising its supervisory jurisdiction under Pt 9 of the Act, the Court has a discretion to refuse a scheme or confirm it with or without modification (s 194). Confirmation of a scheme pursuant to s 194 is not a mere formality ( ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 806 at [4] ). The Court must have regard to the object of protecting the interests of policy holders ( Re Royal at [3]). It must ensure that the scheme will not be prejudicial to the interests of policy holders and that policy holders are properly safeguarded ( NULIFE Insurance Ltd v Norwich Union Life Australia Ltd [2005] FCA 1635 at [24] ). I did not consider that delay to be fatal to the applications ( Re Royal at [18]; Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162). The Notices were published in New South Wales in three other approved newspapers prior to the public inspection period. Public inspection of the schemes was also extended in New South Wales from 8 September 2006 to 12 September 2006 to compensate for the delay in publication in the Daily Telegraph . For these reasons, I was satisfied that the delay did not adversely affect policy holders. Copies of the schemes and the actuaries' reports were provided to APRA in accordance with the Act and the Regulations. APRA is a significant participant in proceedings for confirmation of a scheme ( Re Royal [24]). It informed the Court that it has no objection to the implementation of either scheme. That was a factor of material significance in the exercise of the Court's discretion to confirm the schemes under s 194 of the Act ( The Application of Commonwealth Life Ltd [2003] FCA 637 at [13] ). Significantly, the costs of the schemes will not be borne by policy holders. Lifetime and National will continue to exist after the schemes are implemented and have given undertakings to the Court to maintain their current telephone and email addresses for at least 12 months.
Case: Pye v Renshaw [1951] HCA 8 ; 84 CLR 58
Outcome: referred to
The Commonwealth says, however, that, even if there is an acquisition, it is not an acquisition by the Commonwealth, but by the State. The Commonwealth refers to a long-standing authority of the High Court to the effect that the Commonwealth may properly induce a State to exercise its powers by offering a money grant. The Commonwealth says that, even if the powers exercised by the State constitute an acquisition of land, it is not an acquisition by the Commonwealth but an acquisition by the State (see Pye v Renshaw [1951] HCA 8 ; 84 CLR 58 at 83). 7 Counsel for Mr Spencer contends that the authorities relied on by the Commonwealth are distinguishable from the present case. That may well be. Mr Spencer's argument is along the lines that the Commonwealth has, in some way, provided funds to the State in order to induce the State to impose restrictions that constitute an acquisition, such that the Commonwealth acquires some benefit by reason of the restrictions, the benefit being tradable emissions credits. 8 I consider that the statement of claim, in its present form, is embarrassing, in the sense that it does not disclose facts that, if established, could support the relief that is claimed. I therefore propose to strike out the statement of claim. However, I am prepared to give Mr Spencer the opportunity of filing an amended statement of claim to address the two questions that I have briefly mentioned. If there is an appropriate question of law to be thrown up, it may be possible to consider an application for preliminary determination of that question. It does appear, however, that there will be a factual issue thrown up by any amended pleading, namely, the extent to which the restrictions imposed by the State legislation are capable of constituting an acquisition. It may be that some new facts would enable the court to proceed to dispose of the whole proceeding on the basis of legal argument. That remains to be seen when the amended statement of claim is filed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 13 September 2007 Counsel for the Applicant: Dr J Walsh Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 August 2007 Date of Judgment: 31 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1415.html
Case: Jess v Scott (1986) 12 FCR 187
Outcome: considered
Consistent with the judgment of the Full Court in Jess v Scott (1986) 12 FCR 187, I am satisfied that there are special reasons for granting leave to appeal in the present case. 45 I am not to be taken from the observations set out earlier that there are strong grounds for thinking that the proposed appeal will be successful. However, the unusual factual circumstances of this case and the detailed analysis by Smith FM to the proper use of later facts in respect of the factual question to be determined at an earlier time, persuade me that the appeal is not "doomed to fail". Technical default as to filing within time should not be an unscaleable hurdle where possible injustice might result in the absence of the grant of leave. 46 For all of the above reasons, I make the following orders: (1) The applicant have leave to appeal from the order of Smith FM on 20 April 2007. (2) The time for lodging an appeal be extended to 17 August 2007. (3) The applicant have leave within 21 days from the date of judgment to file and serve an amended Notice of Appeal and any such further affidavit evidence on which she wishes to rely in support of her appeal. 47 As to costs, it was necessary for the applicant to bring this application, and to secure the indulgence of the Court by the grant of leave. That application was unsuccessfully opposed by the first respondent. 48 In the circumstances, it is appropriate to order that there be no order as to the costs of the application for leave to appeal. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 30 August 2007 Counsel for the Appellant: I.N. Asuzu Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 August 2007 Date of Judgment: 30 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1373.html
Case: The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543
Outcome: referred to
Forestry Tasmania relied upon the common law concept of legal professional privilege as referred to in The Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 at 552 to 553. It contended that the emails and attachments are "communications" prepared for the purpose of obtaining legal advice or form part of its lawyer's investigations for the purpose of this proceeding.
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: referred to
Counsel for Forestry Tasmania submitted that the Evidence Act does not apply to its objections to produce the documents called for by Senator Brown. They referred to Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1, where the High Court observed that the statutory privilege was confined to the adducing of evidence during the course of a hearing. They say that at common law, legal professional privilege extends beyond the course of the hearing to pre-trial issues such as discovery disputes. 10 In any event, counsel for Forestry Tasmania contended that "the common law and the statutory tests yield the same conclusion in relation to the protection of the documents called for from production."
Case: Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194
Outcome: followed
The Evidence Act applies to this proceeding; see s 4(1). Order 33 rule 11(5) of the Rules of Court extends the operation of ss 118 and 119 of the Evidence Act to orders for the production of documents in circumstances where the call for production is made in the course of evidence being adduced before the Court; see Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA 1194 at [6] , per Lindgren J. 12 Section 118(a) of the Evidence Act , when read together with O 33 r 11(5) of the Rules of the Court, prevents the production of documents if the production would result in disclosure of a confidential communication made between the client and a lawyer, for the dominant purpose of the lawyer providing legal advice to the client. 13 The documents, the subject of the current call for production, have been described by Mr McDonald (the in-house lawyer for Forestry Tasmania) as being prepared for the purpose of communication between Dr Read and Mr Meggs, to have Mr Meggs critically review affidavits of two witnesses called by Senator Brown, as well as Dr Read's affidavit. 20 In Collins at [5] and [6], Lindgren J stated that s 119 (and inferentially s 118) of the Evidence Act applies to the stage where evidence is adduced, and not to the earlier pre-trial stage of access to documents discovered or produced on subpoena. Order 33 rule 11 applies at the stage where evidence is being adduced in conjunction with ss 118 and 119 by extending their operation. 21 Whether O 33 r 11, in conjunction with ss 118 and 119 , is a code is beside the point. It applies according to its terms. It is to ask the wrong question to inquire whether O 33 r 11 preserves the common law because its terms are not directed to that point.
Case: Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985
Outcome: followed
In like circumstances in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985 , Ryan J said at [6]: "...it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred." 28 I agree, with respect, with the views of Ryan J set out above. At the very least I am not convinced that they are plainly wrong. Accordingly, I will follow it in preference to any contrary approach in State courts. 29 Further, an imputed waiver arises given that the documents relate to the issue of the impartiality of Dr Read and Mr Meggs. In these circumstances it would be unfair to Senator Brown not to require the production of the documents. This is especially so in circumstances where Forestry Tasmania has produced other emails in respect of drafts of Mr Meggs' affidavit.
Case: Ryder v Frohlich [2005] NSWSC 1342
Outcome: followed
Consequently, there has been intentional disclosure of other like communications of a not materially different quality such that if these documents were ever privileged they should no longer retain that status; see Ryder v Frohlich [2005] NSWSC 1342 at [16] per Barrett J. 31 Forestry Tasmania has produced drafts of Mr Meggs' affidavit which are now exhibits in the proceeding. These exhibits raise issues not materially different to the issues raised by the documents sought to be produced, that is, the formation of expert opinion and the independence or otherwise of that opinion. 32 Counsel for Forestry Tasmania contended that it would be premature to rule, at this stage, that privilege is waived until Dr Read's affidavit is read. I agree with counsel for Senator Brown that there is no point in postponing determination of this issue. I am prepared to assume that Dr Read's affidavit will be read.
Case: Flentjar v Repatriation Commission [1997] FCA 1200 ; (1997) 48 ALD 1
Outcome: cited
It is not contended by the applicant that the Tribunal misstated the inquiry it was required to undertake in applying s 24(1)(c) an inquiry which the Tribunal acknowledged was encapsulated in the four questions formulated by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200 ; (1997) 48 ALD 1 at 4-5 (which are unnecessary to repeat here). Suffice it to say that for present purposes it is only necessary to note the following: (i) The Tribunal acknowledged, correctly, that the relevant "remunerative work that the veteran was undertaking" for s 24(1)(c) purposes was a reference to the type of work the veteran had previously undertaken, and not to any particular job: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. Further the parties accept the Tribunal in this case correctly characterised that type of work in Mr Cadd's case as "a club manager". (ii) The Repatriation Commission conceded that Mr Cadd was prevented, because of his war-caused conditions, from continuing to undertake work as a club manager. The Tribunal found in accordance with Dr Ewer's evidence that from some stage during the assessment period (ie the period from the application day to the date when the application or claim was determined: VE Act s 19(9)) his PTSD disability alone would prevent employment for more than eight hours per week. (iii) In considering whether s 24(1)(c) was satisfied the Tribunal indicated the decisive issue was, as it is in this application, whether the exclusionary provisions of s 24(2)(a)(i) applied to Mr Cadd's circumstances. It held that it did.
Case: Banovich v Repatriation Commission (1986) 69 ALR 395
Outcome: cited
It is not contended by the applicant that the Tribunal misstated the inquiry it was required to undertake in applying s 24(1)(c) an inquiry which the Tribunal acknowledged was encapsulated in the four questions formulated by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200 ; (1997) 48 ALD 1 at 4-5 (which are unnecessary to repeat here). Suffice it to say that for present purposes it is only necessary to note the following: (i) The Tribunal acknowledged, correctly, that the relevant "remunerative work that the veteran was undertaking" for s 24(1)(c) purposes was a reference to the type of work the veteran had previously undertaken, and not to any particular job: see Banovich v Repatriation Commission (1986) 69 ALR 395 at 402. Further the parties accept the Tribunal in this case correctly characterised that type of work in Mr Cadd's case as "a club manager". (ii) The Repatriation Commission conceded that Mr Cadd was prevented, because of his war-caused conditions, from continuing to undertake work as a club manager. The Tribunal found in accordance with Dr Ewer's evidence that from some stage during the assessment period (ie the period from the application day to the date when the application or claim was determined: VE Act s 19(9)) his PTSD disability alone would prevent employment for more than eight hours per week. (iii) In considering whether s 24(1)(c) was satisfied the Tribunal indicated the decisive issue was, as it is in this application, whether the exclusionary provisions of s 24(2)(a)(i) applied to Mr Cadd's circumstances. It held that it did.