mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505
Outcome: considered
same sentiments are evident in judgements of the Federal Court of Canada with respect to the judicial review of decisions relating to the disposition of grievances in the Canadian Forces. In Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 Layden-Stevenson J observed of the grievance procedures for which s 29 of the National Defence Act (Can) and Chapter 7 of the Queen's Regulations and Orders made thereunder provide: [34] The purpose of the National Defence Act (NDA) is to provide for the management, direction and administration of the Canadian Forces (CF). The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the Chief of the Defence Staff (CDS), or an officer delegated by him. [35] The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference. Her Honour's judgement was affirmed on appeal to the Federal Court of Appeal: Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157 and has since been cited with approval in relation to another judicial review proceeding arising out of the Canadian Forces grievance resolution provisions: Leading Seaman D.M. Morphy v Canada (Attorney General) [2008] F.C.J. No. 242; 2008 FC 190 at [63]. The observation Layden-Stevenson J made has like application for like reasons in the present case in relation to whether CPL Millar is suitable to be an enlisted member. In the circumstances of this case, the person to be "satisfied" or not on this subject was a senior military officer, not a judicial officer. Deference is called for in relation to the value judgement made by that military officer.
Case: Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157
Outcome: cited
same sentiments are evident in judgements of the Federal Court of Canada with respect to the judicial review of decisions relating to the disposition of grievances in the Canadian Forces. In Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 Layden-Stevenson J observed of the grievance procedures for which s 29 of the National Defence Act (Can) and Chapter 7 of the Queen's Regulations and Orders made thereunder provide: [34] The purpose of the National Defence Act (NDA) is to provide for the management, direction and administration of the Canadian Forces (CF). The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the Chief of the Defence Staff (CDS), or an officer delegated by him. [35] The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference. Her Honour's judgement was affirmed on appeal to the Federal Court of Appeal: Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157 and has since been cited with approval in relation to another judicial review proceeding arising out of the Canadian Forces grievance resolution provisions: Leading Seaman D.M. Morphy v Canada (Attorney General) [2008] F.C.J. No. 242; 2008 FC 190 at [63]. The observation Layden-Stevenson J made has like application for like reasons in the present case in relation to whether CPL Millar is suitable to be an enlisted member. In the circumstances of this case, the person to be "satisfied" or not on this subject was a senior military officer, not a judicial officer. Deference is called for in relation to the value judgement made by that military officer.
Case: Leading Seaman D.M. Morphy v. Canada (Attorney General) [2008] F.C.J. No. 242; 2008 FC 190
Outcome: cited
same sentiments are evident in judgements of the Federal Court of Canada with respect to the judicial review of decisions relating to the disposition of grievances in the Canadian Forces. In Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 Layden-Stevenson J observed of the grievance procedures for which s 29 of the National Defence Act (Can) and Chapter 7 of the Queen's Regulations and Orders made thereunder provide: [34] The purpose of the National Defence Act (NDA) is to provide for the management, direction and administration of the Canadian Forces (CF). The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the Chief of the Defence Staff (CDS), or an officer delegated by him. [35] The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference. Her Honour's judgement was affirmed on appeal to the Federal Court of Appeal: Armstrong v Canada (Attorney General) [2007] F.C.J. No. 546; 2007 FCA 157 and has since been cited with approval in relation to another judicial review proceeding arising out of the Canadian Forces grievance resolution provisions: Leading Seaman D.M. Morphy v Canada (Attorney General) [2008] F.C.J. No. 242; 2008 FC 190 at [63]. The observation Layden-Stevenson J made has like application for like reasons in the present case in relation to whether CPL Millar is suitable to be an enlisted member. In the circumstances of this case, the person to be "satisfied" or not on this subject was a senior military officer, not a judicial officer. Deference is called for in relation to the value judgement made by that military officer.
Case: Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475
Outcome: cited
To support its contention, Hoy refers to the decision in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, where Deane, Dawson and Gaudron JJ observed at 96 that in cases of implied waiver of legal professional privilege the question is whether fairness requires that the privilege should cease: see also Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481 and 488 (per Gibbs CJ and Mason and Brennan JJ). The principle of implied waiver was expressed and applied by this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341, where the Full Court at 354-356 decided that if a party makes an assertion as part of its case that puts the contents of otherwise privileged material in issue, or necessarily opens an inquiry into an issue which gives rise to an inconsistency between maintaining the privilege claim and making the assertion, the privilege is waived by implication: see also Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: cited
Drawing upon the reasoning of Gyles J in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at 119, Hoy submits that this passage constitutes a waiver of the gist or conclusion of the legal advice provided to Allphones, and that in these circumstances any privilege which vests in the legal advice to which the above passage refers has been waived by disclosure. 23 In my opinion, the reference to a position which is 'based on' legal advice does not, in the circumstances of this case, amount to a sufficient disclosure of that legal advice as to amount to a waiver of privilege. Neither the conclusion, nor the gist, nor even any of the content of the legal advice is referred to or disclosed. All that is disclosed is that Allphones has obtained advice and has considered it as part of a basis for making a decision as to its future course of action. The passage is consistent with Allphones having made an independent decision after reading the advice. Moreover, I do not consider that the use of a generalised reference to an extant piece of legal advice constitutes a use of that advice in such a way as to make it unfair or unreasonable not to disclose the full contents of that advice. I am of the view that no privilege which vests in any of the communications in dispute has been waived by disclosure. 24 Hoy further submits that, where a party raises an issue which would be unjust to litigate without access to records bearing on its state of mind, it has impliedly waived privilege in respect of the material on which that state of mind is based. Hoy argues that Allphones has impliedly waived privilege as to a number of the documents because, by electing to continue to require the performance of the franchise agreement from Hoy and by electing to pursue contractual and statutory dispute resolution procedures, Allphones has affirmed the agreement and waived its right to terminate. This, it is said, puts in issue Allphones' state of mind, and thus impliedly waives privilege. Hoy also argues that by purporting to reserve its right of termination Allphones acted in bad faith and with the real purpose of negotiating more favourable terms in its franchise agreement with Hoy. Again, it is said, Allphones has put in issue its state of mind and thereby impliedly waived privilege. Hoy also submits that the implied waiver of privilege is also supported by that fact that Allphones has alleged fraudulent conduct against Hoy as a basis for termination of the franchise agreement.
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: considered
To support its contention, Hoy refers to the decision in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, where Deane, Dawson and Gaudron JJ observed at 96 that in cases of implied waiver of legal professional privilege the question is whether fairness requires that the privilege should cease: see also Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481 and 488 (per Gibbs CJ and Mason and Brennan JJ). The principle of implied waiver was expressed and applied by this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341, where the Full Court at 354-356 decided that if a party makes an assertion as part of its case that puts the contents of otherwise privileged material in issue, or necessarily opens an inquiry into an issue which gives rise to an inconsistency between maintaining the privilege claim and making the assertion, the privilege is waived by implication: see also Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
Case: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: cited
The claims for privilege in this case are to be determined by common law principles, and not pursuant to the provisions of the Evidence Act 1995 (Cth), because the Notice to Produce has not been issued for the purpose of adducing the documents into evidence: see Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 59-63 (per Gleeson CJ, Gaudron and Gummow JJ). 3 The evidentiary basis for the claim of privilege in respect of each particular document has been set out in detailed evidence in the form of three affidavits sworn by the solicitor for Allphones, Mr Lloyd. There has been no cross-examination on those affidavits. 4 In his affidavit of 5 April 2007, Mr Lloyd records that the principal proceeding relates to a dispute between Allphones as franchisor and Hoy as franchisee. Beginning in early 2006, Hoy raised a number of issues and complaints with Allphones concerning questions as to exclusive territory; the loss of the original franchise agreement by Allphones; the execution of a new tax invoice agreement; the payment of money as a contribution to the original fit-out of the premises; and calculations as to payment to Hoy of a commission on sales and connections of mobile telephones and other goods. During the period of March to August 2006, efforts were made to resolve these issues and complaints. The present litigation was commenced on 1 September 2006.
Case: Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83
Outcome: cited
To support its contention, Hoy refers to the decision in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, where Deane, Dawson and Gaudron JJ observed at 96 that in cases of implied waiver of legal professional privilege the question is whether fairness requires that the privilege should cease: see also Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481 and 488 (per Gibbs CJ and Mason and Brennan JJ). The principle of implied waiver was expressed and applied by this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341, where the Full Court at 354-356 decided that if a party makes an assertion as part of its case that puts the contents of otherwise privileged material in issue, or necessarily opens an inquiry into an issue which gives rise to an inconsistency between maintaining the privilege claim and making the assertion, the privilege is waived by implication: see also Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
Case: Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185
Outcome: cited
Hoy submits that Allphones, as the party asserting the claim of privilege, bears the onus of proof of the elements of the privilege. To this end, it relies on the comments of Spigelman CJ in Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47 at [3] . Hoy also argues that it is not sufficient to discharge this onus for the party claiming privilege simply to depose an affidavit making conclusory assertions as to the purpose for which the documents were brought into existence together with a statement about the category of legal professional privilege which applies. To this end, it relies on the decision of the Full Court in Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185 at [12] - [16] (per Black CJ and Emmett J) and [144]-[145] (per Allsop J). Hoy submits that Allphones has not discharged its onus because Mr Lloyd's affidavits are insufficient and because, after having regard to non-privileged correspondence between the parties, it is clear that the dominant purpose for the creation of the documents was a commercial one. It argues that the documents were created in the course of an ongoing business relationship between the parties, rather than for the dominant purpose of legal assistance or obtaining material for use in legal proceedings.
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
To support its contention, Hoy refers to the decision in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, where Deane, Dawson and Gaudron JJ observed at 96 that in cases of implied waiver of legal professional privilege the question is whether fairness requires that the privilege should cease: see also Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481 and 488 (per Gibbs CJ and Mason and Brennan JJ). The principle of implied waiver was expressed and applied by this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341, where the Full Court at 354-356 decided that if a party makes an assertion as part of its case that puts the contents of otherwise privileged material in issue, or necessarily opens an inquiry into an issue which gives rise to an inconsistency between maintaining the privilege claim and making the assertion, the privilege is waived by implication: see also Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
Case: Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47
Outcome: cited
Hoy submits that Allphones, as the party asserting the claim of privilege, bears the onus of proof of the elements of the privilege. To this end, it relies on the comments of Spigelman CJ in Sydney Airports Corp Ltd v Singapore Airlines [2005] NSWCA 47 at [3] . Hoy also argues that it is not sufficient to discharge this onus for the party claiming privilege simply to depose an affidavit making conclusory assertions as to the purpose for which the documents were brought into existence together with a statement about the category of legal professional privilege which applies. To this end, it relies on the decision of the Full Court in Kennedy v Wallace [2004] FCAFC 337 ; (2004) 142 FCR 185 at [12] - [16] (per Black CJ and Emmett J) and [144]-[145] (per Allsop J). Hoy submits that Allphones has not discharged its onus because Mr Lloyd's affidavits are insufficient and because, after having regard to non-privileged correspondence between the parties, it is clear that the dominant purpose for the creation of the documents was a commercial one. It argues that the documents were created in the course of an ongoing business relationship between the parties, rather than for the dominant purpose of legal assistance or obtaining material for use in legal proceedings.
Case: Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Outcome: considered
To support its contention, Hoy refers to the decision in Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83, where Deane, Dawson and Gaudron JJ observed at 96 that in cases of implied waiver of legal professional privilege the question is whether fairness requires that the privilege should cease: see also Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481 and 488 (per Gibbs CJ and Mason and Brennan JJ). The principle of implied waiver was expressed and applied by this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341, where the Full Court at 354-356 decided that if a party makes an assertion as part of its case that puts the contents of otherwise privileged material in issue, or necessarily opens an inquiry into an issue which gives rise to an inconsistency between maintaining the privilege claim and making the assertion, the privilege is waived by implication: see also Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347. 28 Nor does the reasoning in Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 assist Hoy. In that case, the plaintiff was asserting a right to claim damages under a statute. The statutory context made it implicit in making the claim that the plaintiff had not effectively exercised an alternative right, and thus access to the plaintiff's material was necessary to challenge this implicit assertion. That is not the present case. 29 For the above reasons, I do not consider there has been an implied waiver of legal professional privilege in this case. 30 On 3 July 2006, Bartier Perry, three weeks after it had been retained by Allphones, wrote to Mr Quarmby, a customer of Allphones, with a draft statement for his consideration. The statement was in the form of a standard witness a statement, apparently drawn up by the solicitors on instructions. It related to inquiries made in relation to the purchase of an unbundled mobile telephone from an Allphones store. 31 On 15 August 2006, another draft statement was sent by Bartier Perry to a Mr Shepherd for his consideration. The covering letter was marked 'Private &amp; Confidential'. The statement relates to the observations and statements made at Allphones' store concerning 'unlocked phones'. 32 These documents were created and sent to Messrs Quarmby and Shepherd after Allphones retained Bartier Perry to give legal advice and assistance and shortly before the notice of its intention to terminate the franchise agreement was sent on 28 August 2006 and legal proceedings were commenced by Hoy on 1 September 2006.
Case: Three Rivers District Council v Bank of England (No 6) [2005] A.C. 610
Outcome: cited
In this case the thrust of Hoy's submission is that, on the available evidence, the dominant purpose of the documents is not to seek legal assistance but rather to work out an overall strategy to determine the ongoing commercial relationship of the parties. The reality is that parties to a dispute may have dual purposes, in which the seeking of legal advice remains the dominant purpose. Indeed, the notion that there may well be other purposes, such as managerial or commercial objectives, which account for the existence of a record is inherent in the 'dominant purpose' test itself: see Three Rivers District Council v Bank of England (No 6) [2005] A.C. 610 at 650 (per Lord Scott of Foscote). 19 In considering whether a particular document is privileged, it is helpful to consider the documents as a whole and have regard to the whole stream of communications passing between the parties, rather than to examine each document in isolation. This is because, by standing back and looking at the overall course of communication across a period of time, a picture may emerge which characterises the nature and purpose of each individual communication more clearly. Such an approach enables a decision to be made more confidently as to whether a specific document is privileged. In this case, the overall course of communication, when considered in its factual context together with the contents and form of the documents and the specific evidence provided by Mr Lloyd as to the provenance of the documents, is sufficient to persuade me that the dominant purpose for the creation of each of the documents presently in dispute was to obtain legal advice or assistance or to be used in anticipated litigation. Accordingly, I am of the view that each of the communications is privileged. In particular, I do not accept the submission that the steps taken towards the dispute resolution procedure provided for in the franchise agreement is sufficient to displace the strong, detailed and specific evidence supporting the claim for privilege, especially when considered in light of Allphone's retainer of Bartier Perry on 14 June 2006 and the commencement of litigation on 1 September 2006 by Hoy. 20 Hoy also claims that by a letter of 7 July 2006 Allphones waived legal professional privilege in any legal advice referred to in that letter by disclosing the substance of that advice. 21 The letter in question is from Mr Donnellan, Chief Executive Officer of Allphones, to Mr Birch. The relevant passage reads: 'There are serious matters which need to be discussed. Your client will be given an opportunity to respond to those matters and failure to do so will result in immediate termination of its franchise agreement, based on the advice of our lawyers. ' (Emphasis added.)