mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492
Outcome: cited
first and second respondents have submitted that Mrs Tracy ought to pay their costs in respect of the jurisdictional issue. As recently observed, in the past the Full Court has cautioned against too ready a resort to apportionment according to issue based outcomes ( Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492 at [8], Australian Trade Commission v Disktravel [2000] FCA 62 at [3] ). Looking at the proceedings as a whole, the jurisdictional issue was a relatively minor aspect of the case, as was the question whether Mrs Tracy should be liable on an indemnity basis for costs of the first and second respondents. In my view, it is clear that the principal aspect of these proceedings concerned the question whether Mrs Tracy was in fact liable for non-party costs. Mrs Tracy was successful in respect of this principal issue and should, in my view, be entitled to a significant proportion of her costs. However, the facts that: Counsel for Mrs Tracy raised the jurisdictional issue at the hearing of the notice of motion without notice; which in turn necessitated further oral and written submissions by Counsel; and in the final analysis the first and second respondents were successful in respect of this issue; in my view justifies some apportionment of costs in favour of the first and second respondent. However I am not persuaded by the submission of the first and second respondents that Mrs Tracy should be entitled only to one third of her costs on the notice of motion. In light of the fact that Mrs Tracy was successful overall in these proceedings and taking into consideration the minor significance of the jurisdictional issue in the proceedings, I consider that the appropriate order is that Mrs Tracy's costs be discounted by 15%. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 3 June 2009 Solicitor for the Applicants: Mr P Lynch of Lynch Morgan Counsel for the Respondents: Mr PP McQuade Solicitor for the Respondents: McCullough Robertson Date of Hearing: 15 May 2009 Date of Judgment: 3 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/590.html
Case: InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Outcome: cited
I also observed in Citrus (No 8) [2008] FCA 1556 , a long and non-exhaustive list of relevant issues for the Court in considering whether to award indemnity costs can be found in such cases as Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54.
Case: Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168
Outcome: referred to
This seems to me to be consistent with the approach taken by Cowdroy J in Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168 at [26] . His Honour granted access to affidavits admitted into evidence, but access was otherwise refused. Access was granted to annexures but they form part of the affidavit and are to be distinguished from exhibits in the proceedings.
Case: Dawson Nominees v Multiplex (2007) 64 ACSR 53
Outcome: distinguished
Dr Bell pointed to [64] [66] of the judgment of Wilcox J in which his Honour referred to the evidence of Mr Johnsen, stating that it contained evidence of routine downloading of ARIA Top 50 and Top 100 recordings. Dr Bell referred me to the decision of Heerey J in Dawson Nominees v Multiplex (2007) 64 ACSR 53 at [30] to support the proposition that access to the exhibits to the affidavits ought to be granted. But the observations of Heerey J in Dawson Nominees v Multiplex are not a charter for access to documents by non-parties. His Honour's remarks were made in the context of existing proceedings where the documents had potential relevance to the issues in the litigation.
Case: Dobson v Hastings [1992] Ch 394
Outcome: referred to
In Dobson v Hastings [1992] Ch 394 at 401-402, Sir Donald Nicholls VC considered that the Rules of the Supreme Court indicate that save when permitted under the rules, documents on the court file are not intended to be inspected or copied. He said that: ... a court file is not a publicly available register. It is a file maintained by the court for the proper conduct of the proceedings. Access to that file is restricted. Non-parties have a right of access to the extent, but only to the extent, provided in the rules.
Case: eisa Ltd v Brady [2000] NSWSC 929 
Outcome: referred to
It is true, as Finkelstein J said in ACCC v ABB at [6] that O 46 r 6(3) does not distinguish between documents that have been admitted into evidence and those which have not. But as Santow J observed in eisa Ltd v Brady [2000] NSWSC 929 , there is a risk of serious injustice if untested allegations can be published to the world at large: cited in Macquarie Radio Network at [21].
Case: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: referred to
There is an implied undertaking by parties to litigation that documents produced by one party to another in the course of discovery will not be used for any purpose other than in relation to the litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 32 (per Mason CJ), citing inter alia Harman v Secretary of State for the Home Department [1983] 1 AC 280 (" Home Office v Harman ").
Case: GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984
Outcome: referred to
In GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984 at 995, Potter LJ said that when evidence, including court bundles, are read out in court they "enter the public domain" and a member of the press or public may quote from the document: ... but the right of access to it for the purposes of further use or information depends upon that person's ability to obtain a copy of the document from one of the parties or by other lawful means. 48 Nevertheless, the approach taken by his Lordship was not as narrow as this passage might suggest. FAI General Insurance Co Ltd sought access to counsel's written submissions in the proceedings to identify documents that might be the subject of a subpoena in parallel litigation. His Lordship at 996 regarded this as a legitimate purpose for the grant of access to the documents.
Case: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Outcome: referred to
There is an implied undertaking by parties to litigation that documents produced by one party to another in the course of discovery will not be used for any purpose other than in relation to the litigation: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 32 (per Mason CJ), citing inter alia Harman v Secretary of State for the Home Department [1983] 1 AC 280 (" Home Office v Harman ").
Case: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 
Outcome: referred to
As Sackville J observed in Seven Network at [24], O 46 r 6 does not confer a right on a non-party to obtain access to documents admitted into evidence. Leave from the Court is required. His Honour referred with approval to the statement made by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [29] that open justice is a principle, not a "freestanding right".
Case: Macquarie Radio Network Pty Ltd v ABA [2002] FCA 1408
Outcome: referred to
Where leave is sought to inspect documents that have not been read in open court, or at least tendered in evidence and considered by the judge as evidence or submission, the rule in my opinion is that leave will ordinarily be refused to inspect that material. This approach is consistent with that suggested by Sackville J in Macquarie Radio Network Pty Ltd v ABA [2002] FCA 1408 at [21] ; cf. ACCC v ABB at [6]. 44 It is true, as Finkelstein J said in ACCC v ABB at [6] that O 46 r 6(3) does not distinguish between documents that have been admitted into evidence and those which have not. But as Santow J observed in eisa Ltd v Brady [2000] NSWSC 929 , there is a risk of serious injustice if untested allegations can be published to the world at large: cited in Macquarie Radio Network at [21].
Case: Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 606
Outcome: referred to
It is true that in ACCC v ABB Finkelstein J expressed the principle in terms which reflect Dr Bell's submission. It is also true that Sackville J has expressed his agreement with the passage of the judgment; Seven Network at [25]; see also Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 606 at [14] . But in my opinion, Seven Network and other relevant authorities do not establish a rule that there must be exceptional circumstances for an application to be refused.
Case: Re Bond; Ex parte Hongkong Bank [1999] FCA 403
Outcome: cited
I will not allow access to the digital music files discovered by the Sharman respondents, or to the digital files seized from the universities. They are not part of the Court file and they do not appear to have been admitted into evidence. Particular caution is required before granting access to this class of documents: Re Bond; Ex parte Hongkong Bank [1999] FCA 403 at [4] (per Hely J). 78 The "Applicant's' Main Tender Bundle" may have been admitted into evidence but it was a compilation of exhibits and is therefore covered by what I said above about the property in those documents. 79 The same approach is applicable to the appeal books. Access will be obtained by Merlin to the body of the affidavits but the balance of the appeal books (other than pleadings and other documents otherwise available under O 46 r 6(2)) merely reproduce exhibits and transcript.
Case: Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) (2006) 232 ALR 398
Outcome: referred to
This is hardly surprising because the principle which informs the exercise of the power is that of open justice, the underlying rationale being the belief that exposure to public scrutiny is the surest safeguard against abuse of power of the courts: see Seven Network at [21]ff; Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) (2006) 232 ALR 398 at [16]ff; Rich v Harrington (2007) 99 ALD 297 at [17]ff. 38 This was the view taken by French J in Richstar at [18] where his Honour agreed with the observations of Sackville J in Seven Network to which I have referred in the two preceding paragraphs of my judgment. So too did Branson J in Rich v Harrington at [23]. Her Honour said that this approach recognises that the discretion under O 46 r 6 must be exercised having regard to the particular circumstances of the case.
Case: Rich v Harrington (2007) 99 ALD 297
Outcome: referred to
This is hardly surprising because the principle which informs the exercise of the power is that of open justice, the underlying rationale being the belief that exposure to public scrutiny is the surest safeguard against abuse of power of the courts: see Seven Network at [21]ff; Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) (2006) 232 ALR 398 at [16]ff; Rich v Harrington (2007) 99 ALD 297 at [17]ff. 38 This was the view taken by French J in Richstar at [18] where his Honour agreed with the observations of Sackville J in Seven Network to which I have referred in the two preceding paragraphs of my judgment. So too did Branson J in Rich v Harrington at [23]. Her Honour said that this approach recognises that the discretion under O 46 r 6 must be exercised having regard to the particular circumstances of the case.
Case: Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217
Outcome: referred to
Nevertheless, the implied undertaking continues to apply to documents produced on discovery; it also applies to witness statements, affidavits and other documents produced by one side to the other for the purposes of the litigation: Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 221-223 (per Wilcox J). 57 Leave of the court to be released from the undertaking in order to use the documents in other proceedings will only be granted in "special circumstances"; they include the nature of the document, the absence of prejudice to the author and the likely contribution of the document to achieving justice in the second proceeding: Springfield Nominees at 225. 74 Dr Bell pointed to [64] [66] of the judgment of Wilcox J in which his Honour referred to the evidence of Mr Johnsen, stating that it contained evidence of routine downloading of ARIA Top 50 and Top 100 recordings. Dr Bell referred me to the decision of Heerey J in Dawson Nominees v Multiplex (2007) 64 ACSR 53 at [30] to support the proposition that access to the exhibits to the affidavits ought to be granted. But the observations of Heerey J in Dawson Nominees v Multiplex are not a charter for access to documents by non-parties. His Honour's remarks were made in the context of existing proceedings where the documents had potential relevance to the issues in the litigation.
Case: Skalkos v T &amp; S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107
Outcome: applied
The respondent relies on evidence that the notice was posted in accordance with the requirements of s 29(1) , and the evidence recorded at [12] that it was received at the applicant's place of business on 30 June 2005. It relies on this last-mentioned evidence as proof to the contrary for the purposes of the concluding limb of s 29(1). The applicant did not contest this aspect of the "service" issue. If service by post (ie s 28A(1) of the AIA) was available to the respondent, its reliance on s 29(1) is made out. See Skalkos v T &amp; S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107 at [22] , [24]-[25]. 16 The issue between the parties was whether service by post was available. The applicant contended that s 36 of the Act discloses a contrary intention for the purposes of s 28A(1) of the AIA. I cannot discern in s 36 any indication that service by post is not to be available in relation to a notice under sub-s (7) thereof. 17 The applicant relied on sub-s (8)(a), which speaks of notice having been "given" to a person under sub-s (7). Sub-section (7) requires the appropriate person to "serve" the notice. Sub-section (8)(b) speaks of a failure to bring an action within four months after "service" of the notice. It was said that the contrast between "serve" and "service" on the one hand and "given" on the other shows that "serve" in sub-s (7) requires personal service. In my view that contrast is too feeble to constitute a contrary intention. In any case, s 28A(1) of the AIA applies "whether the expression 'serve', 'give' or 'send' or any other expression is used".
Case: Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540
Outcome: cited
The applicant also relied on the obiter observations of Gummow J in Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 at 157-158, approved in obiter by a Full Court in Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540 at 551-554. In my view Garratt is readily distinguishable. The statutory scheme in s 168(3) and (4) of the Social Security Act 1947 (Cth) (the SSA) was entirely different from that in the Act. Section 168(4) dealt with the time at which a determination upon internal review would take place. If the person concerned had sought review within three months after "a notice was given to the person ... advising the person of the making of the previous decision", or if no such notice was given, the determination took effect on the date of the previous decision. Otherwise, the determination took effect on the date of the application for review. 20 Unlike the present case, there was no provision in the SSA that required a notice to be given of a cancellation decision. Although the Act implicitly permitted the Secretary to serve such a document, and to serve it in accordance with s 28A of the AIA, there was no statutory link between that document and the notice of the previous decision referred to in s 168(4)(a). Thus in O'Connell at 552, the question whether the Secretary was entitled to serve a notice of cancellation in accordance with s 28A was treated as separate from whether notice had in fact been given of the previous decision for the purposes of s 168(4)(a). By contrast, s 36(7) of the Act expressly requires a notice to be served, and sub-s (8) refers to the service of that notice. That is to say, the time period specified in sub-s (8) begins to run on "the service of the notice" under sub-s (7). This is not analogous to the legislative setting in Garratt , where the relevant provisions fixed a date which was "determinative of the right of persons in relation to pensions, benefits and claims under the Act": Garratt at 157.
Case: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87
Outcome: cited
It was submitted by the applicant, again by analogy with Garratt at 157, that a contrary intention was constituted by the fact that s 36(8) brought about the forfeiture of property. I do not think that constitutes a contrary intention. In Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96, speaking of a Queensland provision in the same form as s 28A, the High Court said: "Paragraphs (b) and (c) of s 42(1) contemplate the possibility of something less than actual receipt by the person to be served. As was observed by Tindal CJ in Bishop v Helps in relation to a comparable provision, although leaving notices at a place of abode or sending them through the post involve the possibility of non-receipt by the intended recipient: 'It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it.' Nevertheless, proof of the use of any one of the methods of service provided by s 42(1) constitutes proof of service for the purpose of the Hire Purchase Act ...."
Case: Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401
Outcome: applied
Section 126 has been the subject of little judicial consideration although it has been usefully considered by Sackville J in Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401. For present purposes it is sufficient if I note that in that case his Honour indicated that the section contemplated the application of an objective standard. His Honour went on to observe at 414: In applying the standard specified by s 126 of the Evidence Act , it is to be borne in mind that the expression "proper understanding" is by no means narrow. The dictionary definition of "proper" includes "complete or thorough"; the definition of "understand" includes "to apprehend clearly the character or nature of" and "to grasp the significance, implications or importance of" (Macquarie Dictionary). It may or may not be correct to say that the test stated in s 126 of the Evidence Act , is, or appears to be, narrower than the principles governing implied waiver under the general law: cf Cross on Evidence (Aust ed), par 25300. Any precise assessment of the scope of s 126 must await further decisions. However, I think it fair to say that, if a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privilege, ordinarily the test laid down by s 126 of the Evidence Act will be satisfied. 8 While it is true that each of the invoices on its face requires no explanation of its contents (other than the need for translation from Chinese), the invoices themselves bear upon a number of potential questions. There is sharp disagreement between the parties over the incidence, effects and duration of the alleged parallel importation. The invoices that have been produced relate to a quite confined period in 2001 and 2002. For my own part I am satisfied that the significance properly to be attributed to them can only be discerned if one also is aware of the nature of the request that was addressed on Hamilton's behalf to Lo &amp; Lo. Whether it was quite specific or quite general in character, for example, could markedly affect how one would forensically evaluate the significance of the invoices. Hamilton, having tendered the Lo &amp; Lo emails and attachments, cannot now in my view properly resist putting into evidence its own lawyers' request. 9 In the circumstances I am satisfied that client legal privilege has been lost in relation to that request because the disclosure of the request itself is reasonably necessary to enable a proper understanding of the invoices.
Case: Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219
Outcome: cited
It is well accepted that the aim of the court's power to amend under O 13 r 2 of the Federal Court Rules is to allow all the issues which arise in a proceeding to be determined and for a decision to be given on the real matter in controversy. Hence it has been emphasised that amendments to pleadings should be allowed if it not be unjust to do so: see Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219 at [122] . The imperative in favour of amendment has been long accepted and is illustrated, for example, in the observations of Stephen, Mason and Jacobs JJ in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446 where their Honours said: If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged ... Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.
Case: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437
Outcome: cited
It is well accepted that the aim of the court's power to amend under O 13 r 2 of the Federal Court Rules is to allow all the issues which arise in a proceeding to be determined and for a decision to be given on the real matter in controversy. Hence it has been emphasised that amendments to pleadings should be allowed if it not be unjust to do so: see Lactos Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219 at [122] . The imperative in favour of amendment has been long accepted and is illustrated, for example, in the observations of Stephen, Mason and Jacobs JJ in Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446 where their Honours said: If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged ... Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.