mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Outcome: referred to
Subsection (1) provides for the loss of client legal privilege where the evidence adduced is "given with the consent of the client or party concerned". The Full Court of this Court has held that consent in this context is not limited to express consent but reaches cases where the client is deemed to have consented to the disclosure of otherwise privileged material: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 168 per Branson and Lehane JJ. But this decision was limited to cases where the waiver is based upon conduct other than disclosure. Their Honours said (at 168): Of course, as [ Adelaide Steamship Pty Ltd v Spalvins (1998) 81 FCR 360] demonstrates, the position may be different where the conduct relied upon is some disclosure of legal advice, but that need not be further considered here. As a matter of statutory construction, because subsections (2) and (4) deal specifically with waiver by disclosure, it is unlikely that the legislature intended subsection (1) to provide some wider basis for finding there to have been waiver by disclosure. In my view, subsection (1) applies where consent is given to the adducing of evidence in court (rather than disclosure out of court) or where a client engages in conduct inconsistent with the maintenance of the privilege, such as where the substance of legal advice received is relied upon in order to raise an issue in the proceeding. Insofar as the applicant's submission on the waiver of privilege relies upon the inadvertent disclosure of the memorandum in the respondents' written submissions, subsection (1) is of no assistance. 149 Subsection (1), in the applicable sense described above, may have been raised by the applicant in another way and I considered whether privilege may have been waived by some reason other than the disclosure. In particular, in the letter from the AGS dated 28 July 1998 to the applicant the second respondent's reasons are set out and it is said that the second respondent "also took into account the advice". I considered whether the maintenance of legal professional privilege was inconsistent with that assertion and, as such, whether consent to the adducing of the evidence could be imputed and the privilege lost by operation of subsection (1). I was not prepared to conclude that the assertion and maintenance of the privilege were inconsistent because there was nothing before me to indicate that the legal advice said to have been taken into account by the second respondent was the legal advice received from the AGS. 150 It remains only briefly to observe that the common law relating to legal professional privilege, and its reliance to some extent upon notions of fairness, may be relevant to my discretion to exclude evidence under s 135 of the Evidence Act . But this would arise only if I had concluded that privilege was lost under s 122 and the respondent made an application to exclude the evidence for reasons of fairness, notwithstanding its unprivileged status.
Case: Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346
Outcome: referred to
It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection.
Case: The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: referred to
In considering the application for leave to amend, I had regard to the well-known principles referred to in the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. 15 The applicant sought to put forward new and quite different claims at a very late stage of the trial. It was clear, at least from the respondents' point of view, that it was likely that if the amendments were allowed, witnesses would have to be recalled and new witnesses may need to have been called. If the amendments were allowed, the trial would have had to be adjourned and it was likely that another pre-trial set of procedural orders would need to have been made. The applicant asserted, but did not establish to my satisfaction, that his application to amend had come forward only because of late discovery or disclosure of material by the respondents. He certainly did not establish that the application to amend could not have been made well before the commencement of the trial. In the circumstances, I did not think that it was appropriate to allow the amendments and I refused leave to amend. In those circumstances I did not need to consider some of the other grounds advanced (but not developed) by the respondents in opposing the application for leave to amend. Those grounds included an assertion that the proposed new causes of action were out of time and statute-barred and that some of the proposed new claims were unarguable as a matter of law. 16 The applicant gave evidence. The bulk of his evidence-in-chief was given by way of affidavit and he was cross-examined by counsel for the respondents. He was in 1997 and remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others. He tended to focus on matters which were not directly relevant to the issues in the proceeding. He is convinced that there was a conspiracy against him led by the third respondent. A good deal of his evidence was irrelevant to the issues raised in this proceeding and other "evidence" in his affidavits was in reality submissions about why I should find that the third respondent was motivated by improper considerations. I approach the applicant's evidence with considerable caution and I accept the evidence of the respondents where there is a conflict. For reasons I will give, I reject the applicant's evidence that he was given an access privilege to the ATO computer system in May 1997. Further, some of the evidence he gave directed to establishing possible innocent explanations for certain system violations was confusing, but even if accepted, did not rise anywhere near a level sufficient to establish an error of the type identified in s 5 of the ADJR Act .
Case: Deputy Commissioner of Taxation v Bedroff Pty Ltd ACN 079 158 955 [2009] FCA 1266
Outcome: followed
30 October 2009, for reasons which I then gave ex tempore, I adjourned the hearing of the Deputy Commissioner of Taxation's (Deputy Commissioner) application for the winding up of Bedroff Pty Ltd ACN 079 158 955 (the company) to 24 November 2009: see Deputy Commissioner of Taxation v Bedroff Pty Ltd ACN 079 158 955 [2009] FCA 1266. These reasons for judgement should be read in conjunction with those earlier reasons. On 24 November 2009, the Deputy Commissioner renewed his application for the winding up of the company. That application was opposed, nominally, by the company. The effect of the appointment of administrators on 29 October 2009 was to place the company under their control and, while it is under administration and save with the administrators' written approval, to suspend the powers of its officers to exercise their powers or functions. The company has but one officer, its director Mr Mark Tonge. To the extent that the company is itself inhibited from opposing the Deputy Commissioner's application, I am prepared to treat the application as one opposed by Mr Mark Tonge. It is he who has proposed the deed of company arrangement in question. As will be seen, he is to be the beneficiary of particular releases for which that proposed deed provides. The submission made in opposition to the Deputy Commissioner's application was that I should be satisfied, on the material by then to hand, that it was in the interests of the company's creditors for the company to continue under administration rather than be wound up. If so satisfied I am obliged by s 440A(2) of the Corporations Act 2001 (Cth) (Corporations Act) to adjourn further the hearing of the application for an order for the winding up of the company.
Case: Public Trustee of Queensland v Octaviar Ltd (subject to a Deed of Company Arrangement) (Receivers and Managers Appointed) (2009) 69 ACSR 621
Outcome: cited
position which obtained on 30 October 2009 was that, though the information then to hand concerning the benefits which might flow to creditors under a Deed of Company Arrangement was then general, enough was revealed to admit of satisfaction that it was at least in the interests of creditors for the company to continue under administration for a short time so as to enable the terms of the deed to be precisely formulated, the position in relation to the company's affairs to be investigated at least in a preliminary way by the administrators and for a binding commitment to be made on behalf of a related creditor whom it was said would subordinate his interests to those of other unsecured creditors for the purposes of any distribution under the proposed deed of company arrangement. In effect and as matters then stood, I was persuaded that observations made by Philip McMurdo J in Public Trustee of Queensland v Octaviar Ltd (subject to a Deed of Company Arrangement) (Receivers and Managers) (2009) 69 ACSR 621 told in favour of such satisfaction. It was not at that early stage a patent absence of a basis for satisfaction that it was in the interests of creditors for the company to continue under administration; cf Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640.
Case: Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640
Outcome: cited
position which obtained on 30 October 2009 was that, though the information then to hand concerning the benefits which might flow to creditors under a Deed of Company Arrangement was then general, enough was revealed to admit of satisfaction that it was at least in the interests of creditors for the company to continue under administration for a short time so as to enable the terms of the deed to be precisely formulated, the position in relation to the company's affairs to be investigated at least in a preliminary way by the administrators and for a binding commitment to be made on behalf of a related creditor whom it was said would subordinate his interests to those of other unsecured creditors for the purposes of any distribution under the proposed deed of company arrangement. In effect and as matters then stood, I was persuaded that observations made by Philip McMurdo J in Public Trustee of Queensland v Octaviar Ltd (subject to a Deed of Company Arrangement) (Receivers and Managers) (2009) 69 ACSR 621 told in favour of such satisfaction. It was not at that early stage a patent absence of a basis for satisfaction that it was in the interests of creditors for the company to continue under administration; cf Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640.
Case: Chief Commissioner of Stamp Duties (New South Wales) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226
Outcome: applied
deed of removal and appointment does not make any express provision for the indemnification by FUFM from the trust fund of the Barr Trust of liabilities incurred by the company in the ordinary course of its prior administration of that. If it were thought at that time that the company's removal from the office of trustee and that absence of provision might in some way have insulated the trust fund from the claims of the company's creditors or its liquidator if it were wound up, that view was mistaken. That absence of express provision does not affect the position which prevails in equity. The company is entitled to be reimbursed from the trust fund of the Barr Trust in respect of expenses incurred by it in the administration of that trust up to and including the time of its removal as trustee. As was explained in Chief Commissioner of Stamp Duties (New South Wales) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 247, [50] (Buckle's case).by reference to a statement earlier made in Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37 ; (1945) 72 CLR 319 at 335, "the trustee's right to exoneration or recoupment 'takes priority over the rights in or in reference to the assets of beneficiaries or others who stand in that situation'." I did not understand the submission made in opposition to the Deputy Commissioner's application to gainsay that position.
Case: Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37 ; (1945) 72 CLR 319
Outcome: considered
deed of removal and appointment does not make any express provision for the indemnification by FUFM from the trust fund of the Barr Trust of liabilities incurred by the company in the ordinary course of its prior administration of that. If it were thought at that time that the company's removal from the office of trustee and that absence of provision might in some way have insulated the trust fund from the claims of the company's creditors or its liquidator if it were wound up, that view was mistaken. That absence of express provision does not affect the position which prevails in equity. The company is entitled to be reimbursed from the trust fund of the Barr Trust in respect of expenses incurred by it in the administration of that trust up to and including the time of its removal as trustee. As was explained in Chief Commissioner of Stamp Duties (New South Wales) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 247, [50] (Buckle's case).by reference to a statement earlier made in Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37 ; (1945) 72 CLR 319 at 335, "the trustee's right to exoneration or recoupment 'takes priority over the rights in or in reference to the assets of beneficiaries or others who stand in that situation'." I did not understand the submission made in opposition to the Deputy Commissioner's application to gainsay that position.
Case: CPT Custodian Pty Ltd v Commissioner of State Revenue (Victoria) [2005] HCA 53 ; (2005) 224 CLR 98
Outcome: applied
would seem that Mr Hayes is either unaware of the change in July in the occupancy of the office of trustee or unaware of its impact. It is unnecessary to decide which. Mr James Tonge's claim for "unpaid beneficiary entitlements" is a claim to be paid from the trust fund of the Barr Trust. It is the responsibility of the trustee for the time being of the Barr Trust to meet that claim insofar as the trust fund is in surplus and subject to any priority claim on that fund. The trustee of the Barr Trust is no longer the company but rather FUFM. Further, even assuming that there remains any surplus after the claims of secured creditors are met, unless and until the company's entitlement to reimbursement, referred to above, is satisfied, it is impossible even to state what the trust fund of the Barr Trust comprises: see also in addition to Buckle's case, CPT Custodian Pty Ltd v Commissioner of State Revenue (Victoria) [2005] HCA 53 ; (2005) 224 CLR 98 at 121, [51] . Again, the absence of any discrimination in the administrators' draft report as between the claims of those such as the Deputy Commissioner who were and remain creditors of the company and those such as Mr James Tonge who, as beneficiaries, have a claim against the trust fund (such as it may be) of the Barr Trust is a significant omission. That employee entitlements are being foregone in the proposed deed of company arrangement is an offer the value of which is moot. As explicitly identified, they amount to no more than $7,000. Further, even this amount and the further statement in para 12.12 of the draft report that the administrators had "received a claim from Mr Mark Tonge in the amount of $300,000 for unpaid wages" is at odds with the statement in para 12.11 of the draft report where the administrators note that, "the company did not have any employees and therefore no employee entitlements are outstanding". Further, under the terms of s 556(1A) of the Corporations Act , the amount of outstanding entitlements to Mr Mark Tonge in respect of the period when he was a director of the company which would enjoy any priority in the event of a winding up is subject to a cap of $2,000. It was for those who would wish to engender the satisfaction that it was in the interests of creditors for the administration to continue so as thereby to occasion an adjournment to resolve or explain such seeming inconsistencies. It has been known since 30 October 2009 that it would be necessary to engender such satisfaction on 24 November 2009.
Case: Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (Administrators Appointed) (2009) 71 ACSR 81 
Outcome: cited
Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (Administrators Appointed) (2009) 71 ACSR 81 at [20]-[27], I canvassed authorities touching upon the question of the judicial satisfaction to which s 440A(2) of the Corporations Act refers. I shall not repeat afresh what is there stated. The subsection requires that there be some persuasive case that it is in the interests of creditors for a company to continue under administration. On analysis, for reasons given above, the material now to hand reveals no such case. Rather, it reveals a situation where creditors may come to vote at the meeting on the false premise that there is a substantial benefit being conferred in relation to the deed by Mr James Tonge's offer of subordination and more generally on the basis of an absence of consideration of the ramifications of the company's having acted as the trustee of the Barr Trust. I note that the administrators observe in the draft report that: "it is inappropriate for the administration to end and the control of the company returned to its director. The company has ceased trading and has significantly more liabilities than assets". So far as the objects of Pt 5.3A of the Corporations Act are relevant, that observation eliminates as a factor telling in favour of its being in the interests of creditors for the administration to continue that this course will "maximise the chances of the company, or as much as possible of its business, continuing in existence" (s 435A(a)). These matters are in themselves enough to dissuade me from satisfaction that it is in the interests of creditors for the company to continue under administration. There is another consideration that underscores that view.
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
In relation to the principal question, namely, the appellant's fear of persecution for breach of China's "one-child policy", the Tribunal accepted that the appellant had breached the policy, but went on to state that it was satisfied that any harm which may be suffered by the appellant was pursuant to a law of a general application. Accordingly, after referring to the principle discussed by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 233 (per Brennan CJ) and 258 (per McHugh J) that the enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention, the Tribunal in the present case formed the view that the law concerning China's "one-child policy" was a law of general application, and that the appellant did not have a well-founded fear of persecution arising out of the existence of that law. 6 The appellant disputed the uniformity and generality of the application of China's "one-child policy" on the basis that the law was applied differently as between different ethnic groups and regions in China. However, the Tribunal accepted that the law was one of general application and reasoned that, without evidence of selectivity in its enforcement, such a law amounts to no more than a non-discriminatory law and, therefore, on the High Court authority, would not give rise to circumstances warranting the grant of a protection visa. 7 The appellant, in his notice of appeal, raises two other grounds. The first is that he was denied natural justice because the Tribunal did not give him particulars of certain information which constituted its reason or part of its reason for affirming the decision under review. None of the brief submissions advanced in the notice of appeal make out the allegation embodied in this ground. The second ground is that the Federal Magistrate failed to find that the Tribunal erred because it asked incorrect questions. There is no substance in this ground because it is apparent on a fair reading of the Tribunal's reasons for decision that it not only asked the correct questions but also directed its attention to the crucial aspects of the appellant's claim, namely, China's "one-child policy" and its general application.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
In the course of submissions, the applicants suggested that they should be awarded costs on a solicitor and client basis, but there are no circumstances in this case which warrant such an order ( Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77.