mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Actwane Pty Ltd [2002] NSWSC 572
Outcome: approved
The cases make it clear, however, that it may be appropriate to make a direction to the effect that a particular transaction is not unlawful solely because the counter-party to the transaction is a company associated with the entity which appointed the receivers and managers. This is precisely what was done by Hodson J in Vartex. In that case, his Honour referred to the principle of mortgage law that a mortgagee cannot exercise a power of sale in favour of itself ('the mortgagee principle') and went on to find that the mortgagee principle does not apply so as to prevent a receiver appointed by a mortgagee from selling the mortgage property to the mortgagee who appointed him. The same approach was adopted by Austin J in One.Tel at 95-97 [51]-[60]. Moreover, in Re Actwane Pty Ltd [2002] NSWSC 572 (' Actwane' ), Austin J followed the approach in Vartex and One.Tel and made a direction that: '... notwithstanding the principle of mortgage law that the mortgagee cannot exercise a power of sale in favour of itself, it would not be unlawful for the plaintiff to... enter into an agreement with Temujin Securities Pty Ltd solely by reason of the fact that the Appointor of the Receiver and Manager under a Deed of Appointment dated 1 August 2001 is also the director and sole shareholder of Temujin Securities Pty Ltd.'
Case: Nederlandse Reassurantie Groep Holding NV v Bacon &amp; Woodrow [1995] 1 All ER 976
Outcome: considered
The approach explained by Taylor LJ in Balabel has been followed in subsequent cases. In Nederlandse Reassurantie Groep Holding NV v Bacon &amp; Woodrow [1995] 1 All ER 976 (' NRG' ), the action concerned a negligence claim brought by a Dutch corporation against various parties who had advised it in connection with a share purchase transaction. In the course of discovery, the plaintiff disclosed a bill of costs from its solicitors in respect of work carried out in relation to the share purchase transaction. One of the defendants claimed that the bill of costs showed that the solicitors were providing not only legal advice but advice of a more general nature going to the commercial advisability of the share purchase transaction. They sought specific discovery of communications passing between the plaintiff and its solicitors. Colman J rejected the claim. In doing so, Colman J said that Balabel had not disturbed well accepted principles concerning the scope of legal professional privilege (at 983): 'However, legal professional privilege only attaches to such communications as pass between the solicitor and client which are brought into existence or occur in the course of the performance of the solicitor's professional duty or function as solicitor retained to give professional advice, as distinct from some other capacity unrelated to the giving of legal professional advice (see Minter v Priest [1930] AC 558 esp at 581-586 per Lord Atkin). The substance of the scope of the privilege as identified by Taylor LJ in Balabel v Air India [1988] 2 All ER 246, [1988] Ch 317 does not, in my view, disturb or modify what has been clear law since Minter v Priest , namely that if a solicitor is instructed for the purpose of getting legal advice in relation to a particular transaction or series of transactions, then all the communications between the solicitor and the client relating to that transaction will be privileged notwithstanding they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of the client.'
Case: In re L (a minor) (Police Investigation: Privilege) [1997] 1 AC 16
Outcome: considered
In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 (' Three Rivers' ), the privilege claim arose in the context of an inquiry by Bingham LJ that followed the collapse of the Bank of Credit and Commerce International SA ('BCCI') in July 1991. The focus of the inquiry was the supervision of BCCI by the Bank of England. Freshfields were retained by the Bank to advise generally on all dealings of the Bank, its officials and employees with the inquiry. Freshfields retained counsel to assist in the process. Both Freshfields and counsel gave advice as to the preparation and presentation of the Bank's evidence to the inquiry and as to the submissions that should be made to the inquiry on the Bank's behalf. The Bank claimed legal advice privilege over documents which the trial judge summarised as having been 'generated for the purpose of providing information to the Bank's legal advisers to enable them to prepare submissions and/or to advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from the inquiry': see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWHC 2730 (Comm). It appears that insofar as these documents were at issue in the House of Lords in Three Rivers , they all related to the content of the Bank's 'overarching statement' (the statement of its case) to the inquiry: see at 641 [6] and 683 [120]. The Bank did not rely upon the litigation limb of legal professional privilege because the inquiry was not an adversarial proceeding: see the House of Lords' decision in In re L (a minor) (Police Investigation: Privilege) [1997] 1 AC 16 (' Re L ') which I discuss later in these reasons.
Case: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151
Outcome: considered
In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151 (' DSE' ), Allsop J followed Dalleagles and Balabel , and said that he saw no difference of substance between them: at 173 [71]. But Allsop J made it clear that he did not consider that these cases extended legal professional privilege beyond legal advice (at 165 [45]): 'I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework" (Taylor LJ in Balabel at 330). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context.' The last sentence in this passage refers to the statement by Colman J in NRG at 983 that a solicitor's professional duty or function not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought. 130 This line of authorities was canvassed by Allsop J in DSE, and I have gained assistance from several of the cases he discusses. In Bank of Nova Scotia v Hellenic Mutual War Risk Association (Bermuda) Ltd [1992] 2 Lloyd's Rep 540 ( 'The Good Luck' ), Saville J said at 540: 'In my view if a lawyer-client communication falls within the principles set out in Lord Justice Taylor's judgment (that is to say, is covered by legal professional privilege) then internal documents or parts of documents of the client (or indeed the lawyer) reproducing or otherwise revealing those communications are also covered by the same privilege, whatever the purpose or motive (short of fraud) for which the document comes into existence. The principle justifying legal professional privilege is (as Lord Justice Taylor pointed out) that a client should be able to obtain legal advice in confidence.' See also Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 (' The Sagheera' ) at 171.
Case: GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146
Outcome: cited
In FCT v Pratt Holdings , Kenny J observed at 278 [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. Kenny J added that the evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 (' GSA Industries' ) at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569 per Gummow J; and Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that lead to the creation of the document and its subsequent communication. 111 In the usual case, the question will be whether the requisite dominant purpose existed at the time the document was brought into existence. In some cases, however, intentions may shift between the time when the document was commissioned or created or communicated: see GSA Industries at 153-154 [29]-[34]; and Esso at 77 per McHugh J. In GSA Industries , Holmes J observed at 154 [34] that, on the basis that the communication and not the document is the subject of privilege, it is arguable that a time later than the creation of the document may be relevant. This kind of difficulty does not arise in the present case. It is not suggested by either party that Mr Lindberg's intentions, or those of any other party relevant to the creation or communication of Exhibit 665, changed between the time when Mr Lindberg drafted the statement of contrition and the time when it was communicated by email to those who had participated in the telephone conference of 21 December 2005.
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: cited
In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ), the Full Court (Tamberlin, Emmett and Gyles JJ) held that legal representatives of the Australian Customs Service had waived privilege in legal advice by stating openly that they had given advice to Customs that a particular regulation did not prohibit public comment by an officer on matters of public administration. After referring to numerous authorities, Gyles J stated at 119 [65]: 'The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.' Tamberlin J found that the disclosure expressed the substance of the advice that had been given and consequently it would be inconsistent and unfair to now seek to maintain privilege in respect of the relevant parts of the advice. His Honour continued at 104 [6]: 'It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.' Tamberlin J referred to authorities which drew a distinction between a mere reference to the existence of legal advice which did not amount to a waiver, and cases in which the substance of the advice had been disclosed: see Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 and Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377. These cases arose in the context of s 122(2) of the Evidence Act 1995 (Cth), which expressly refers to a loss of client legal privilege consequent upon the disclosure of 'the substance of the evidence'.
Case: Rio Tinto Limited v Commissioner of Taxation (2005) 224 ALR 299
Outcome: cited
Bennett has been followed by Sundberg J in Rio Tinto Limited v Commissioner of Taxation (2005) 224 ALR 299 at 312-313 [49]-[53], and Sackville J in Seven Network Limited v News Limited (No 12) [2006] FCA 348: see also Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425.
Case: Seven Network Limited v News Limited (No 12) [2006] FCA 348
Outcome: cited
Bennett has been followed by Sundberg J in Rio Tinto Limited v Commissioner of Taxation (2005) 224 ALR 299 at 312-313 [49]-[53], and Sackville J in Seven Network Limited v News Limited (No 12) [2006] FCA 348: see also Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425.
Case: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58
Outcome: cited
In Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58, Tamberlin J at 67-68 held that the disclosure of memoranda of fees, backsheets to counsel and counsel's fee slips did not amount to an implied waiver of privilege in the underlying documents. This was because the relevant memoranda etc did not disclose the nature and content of privileged material; they simply recorded in outline form the work which had been undertaken without disclosing the content of privileged communications, advices, briefs or conferences: see also Packer at 282; and Temwood Holdings Pty Ltd v Western Australian Planning Commission [2003] WASCA 112 at [20] - [25] . 140 I have carefully read, and re-read, Exhibit 665 with these legal principles in mind. 141 I have also taken into account all of the evidence concerning the links between Mr Zwier's legal advice and the subsequent drafting of Exhibit 665 by Mr Lindberg, including Mr Lindberg's evidence that his drafting of Exhibit 665 was based very closely on the oral and written advice he had received from Mr Zwier. Mr Zwier's affidavit of 5 April 2006 contains the statement that, having read Exhibit 665, he can say that it incorporates aspects of the legal advice which he had given. In his oral evidence Mr Zwier explained to some extent the factual basis for this statement. He said that he saw in Exhibit 665, in substantive respects, some reflection of the advice he had given to Mr Lindberg. In particular, he said that he had advised that particular subject matters should be included in the draft statement and they had been included.
Case: Carter v Northmore Hale Davy &amp; Leake [1995] HCA 33 ; (1995) 183 CLR 121
Outcome: considered
AWB submitted that the policy considerations that attract privilege for documents that are brought into existence for the dominant purpose of providing legal services in connection with litigation apply with equal force to documents that are brought into existence for the dominant purpose of preparing and submitting evidence to the Inquiry. More specifically, it submitted that the broad rationale adopted by the High Court in Carter v Northmore Hale Davy &amp; Leake [1995] HCA 33 ; (1995) 183 CLR 121 ( 'Carter' ) that underpins both limbs of legal professional privilege, namely that it is 'a practical guarantee of fundamental, constitutional, or human rights... and a corollary of the rule of law' (at 161 per McHugh J) supports the extension of the privilege beyond adversarial litigation to the conduct of this particular Inquiry, at least insofar as it affects AWB and its employees. 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: considered
The judicial review application in this case is founded on ss 5 and 6 of the ADJR Act. The common feature of these provisions is that they attract jurisdiction only where there is 'a decision of an administrative character made, proposed to be made, or required to be made ... under an enactment...': see s 3(1) of the ADJR Act. Section 5 applies to the review of the decision itself whereas s 6 applies to conduct engaged in for the purpose of making such a decision. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (' Bond' ), the High Court held that a reviewable decision generally entails a decision which is final or operative and determinative, at least in the practical sense, of an issue falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision will not ordinarily qualify as a reviewable decision: at 337 per Mason CJ (Brennan and Deane JJ agreeing). Further, to be reviewable under the ADJR Act, a decision must also be a substantive determination rather than a procedural one: at 337. 182 The other decisions that AWB seeks to review concern the Commissioner's construction of the RCA. In particular, AWB seeks to review the Commissioner's conclusion concerning the construction and operation of the 'reasonable excuse' provisions of s 3(4) and (5) of the RCA, and the Commissioner's conclusion that the RCA confers an ancillary or incidental power upon him to determine whether a claim of legal professional privilege has been established. Not only do these decisions or conclusions fall outside the scope of the ADJR Act because they are not given legal force or effect by the RCA; none of them amount to final and operative decisions that are amenable to judicial review. They are simply conclusions reached along the way by the Commissioner in the course of reasoning to his ultimate decision that legal professional privilege did not attach to Exhibit 665. As such, they are not decisions of an administrative character made under an enactment: see Bond at 337 per Mason CJ. 183 For the foregoing reasons, I decline to undertake a judicial review of the decisions or rulings made by the Commissioner. 184 From what appears above, it will be apparent that I reject AWB's claims for a declaration that Exhibit 665 is protected by legal professional privilege and for injunctions restraining the Commissioner from using or publishing Exhibit 665 and requiring that he return it to AWB. It remains for me to consider AWB's claim for declarations that the Commissioner does not have power to order the production of a privileged document or to determine whether a document is protected by legal professional privilege and should not determine such a claim.
Case: Re Adams and the Tax Agents' Board (1976) 7 ATR 87
Outcome: cited
The Commonwealth submitted that the RCA conferred power on the Commissioner, for practical and procedural reasons, to reach an opinion as to whether or not Exhibit 665 attracted legal professional privilege. This submission was founded on Re Adams and the Tax Agents' Board (1976) 7 ATR 87, in which Brennan J said at 89: 'An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court's judgment and not the administrative body's opinion which defines the extent of (as well as the constitutional support for) its statutory authority. ... An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board's function of forming an opinion upon the question. He said (at 618): "I do not mean to say that the Board may not, for the purpose of determining its own action, 'decide' in the sense of forming an opinion upon the meaning and application of the words 'coal mining industry'. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception".' Brennan J applied these principles in concluding that the Administrative Appeals Tribunal and the Tax Agents Board could express an opinion about the constitutional validity of a provision of the Income Tax Assessment Act 1936 (Cth), but neither body could make a decision on that question that produces any effect in point of law: at 91-92.
Case: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187
Outcome: cited
I was referred to a number of other authorities to similar effect. The issue in Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 was whether notices issued by the Deputy Commissioner of Taxation extended to documents which were the subject of legal professional privilege. Lockhart J said that any claim for privilege could be asserted and tested in the courts: at 200. Hill J said that at an appropriate time, which would generally be at the latest time for compliance with the notice, it would be incumbent upon the recipient of the notice to make a claim for privilege and, if that claim be rejected, to maintain the claim by an application to a court or by way of defence in a prosecution: at 217. There is no suggestion in the judgments in the Full Court that the Deputy Commissioner of Taxation was impliedly empowered by the legislation to determine the claim for privilege in a way that had any legally binding force or effect.