mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686
Outcome: cited
In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant". 27 The caution that courts have exercised where parties seek to obtain documents by subpoena from other parties is influenced by the principle that a particular procedure has been prescribed for obtaining such documents, namely discovery: Shell Co at [50]. With non-parties, however, the position is reversed. In recent times the introduction of O 15A r 8 has allowed discovery from non-parties, but it is a jurisdiction which "should be exercised with caution" and is not intended "for the general run of case": McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [33]. So for the obtaining of documents from a non-party such as ASIC, subpoena duces tecum is the norm rather than the exception.
Case: Pasini v Vanstone [1999] FCA 1271
Outcome: cited
In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant".
Case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101
Outcome: cited
The documents sought have at least potential relevance to the issues in this case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] . At the very least they could be reasonably be expected to throw light on some of the issues: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432, McIlwain at [35]. In particular, this can be said of the consultant's report. The fact that a document may not be admissible in evidence does not of itself mean it cannot be the subject of a valid subpoena.
Case: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432
Outcome: cited
The documents sought have at least potential relevance to the issues in this case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] . At the very least they could be reasonably be expected to throw light on some of the issues: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432, McIlwain at [35]. In particular, this can be said of the consultant's report. The fact that a document may not be admissible in evidence does not of itself mean it cannot be the subject of a valid subpoena.
Case: McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785
Outcome: cited
The caution that courts have exercised where parties seek to obtain documents by subpoena from other parties is influenced by the principle that a particular procedure has been prescribed for obtaining such documents, namely discovery: Shell Co at [50]. With non-parties, however, the position is reversed. In recent times the introduction of O 15A r 8 has allowed discovery from non-parties, but it is a jurisdiction which "should be exercised with caution" and is not intended "for the general run of case": McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [33]. So for the obtaining of documents from a non-party such as ASIC, subpoena duces tecum is the norm rather than the exception. 31 The documents sought have at least potential relevance to the issues in this case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] . At the very least they could be reasonably be expected to throw light on some of the issues: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432, McIlwain at [35]. In particular, this can be said of the consultant's report. The fact that a document may not be admissible in evidence does not of itself mean it cannot be the subject of a valid subpoena.
Case: B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
Outcome: referred to
Even if the appellant's failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant's absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] ; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] ; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 ; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].
Case: Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590
Outcome: referred to
The application for review by the RRT was filed after the provisions of s 422B came into force in July 2002; that section was therefore applicable: see SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 at [4] . There may be some doubt as to the construction and effect of s 422B: see WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57] ; see also Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] to [36].
Case: NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184
Outcome: referred to
Even if the appellant's failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant's absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] ; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] ; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 ; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].
Case: SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457
Outcome: referred to
Even if the appellant's failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant's absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] ; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] ; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 ; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].
Case: SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356
Outcome: cited
The application for review by the RRT was filed after the provisions of s 422B came into force in July 2002; that section was therefore applicable: see SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 at [4] . There may be some doubt as to the construction and effect of s 422B: see WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57] ; see also Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] to [36].
Case: SZBNK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 998
Outcome: cited
The appellant's adoption of the contents of his migration file in his application for review had the effect that the appellant gave that information for the purpose of his review application: see s 424A(3)(b). The RRT was therefore not required to provide particulars of information under section 424A(1): see SZBNK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 998. 27 For the reasons that I have given the appeal must be dismissed with costs. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 17 February 2006 The Appellant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/96.html
Case: VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407
Outcome: referred to
Even if the appellant's failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant's absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] ; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] ; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 ; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].
Case: WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106
Outcome: referred to
The application for review by the RRT was filed after the provisions of s 422B came into force in July 2002; that section was therefore applicable: see SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 at [4] . There may be some doubt as to the construction and effect of s 422B: see WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57] ; see also Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] to [36].
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.
Case: Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328
Outcome: applied
This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.
Case: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188
Outcome: applied
This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.
Case: Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25
Outcome: applied
This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees &amp; Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
In claiming confidentiality (albeit unsuccessfully) and in making this application for an interlocutory injunction, AWB has done everything within its power to prevent the publication of the documents. It is difficult to see why, in those circumstances, the step that the Inquiry wishes to take of publishing the documents on its website would increase the risk that AWB's conduct would be regarded as effecting a waiver of privilege over other documents. Imputed waiver arises where the party claiming legal professional privilege engages in conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 [29] . 12 Secondly, the references to legal advice in the documents have essentially the same character as other disclosures that AWB has previously made to the Commission. Those disclosures have been the subject of evidence in public proceedings at the Inquiry, and are already in the public domain. It is difficult to see why the additional references in the documents to legal advice would alter the risk of waiver that AWB already confronts as a result of the prior publication of very similar material. 13 Thirdly, in the course of this case, the Commonwealth has relied upon previous occasions on which AWB has disclosed the existence and substance of legal advice to contend that AWB has waived legal professional privilege over associated documents. Mr Harrison, senior counsel for the Commonwealth, informed the Court that the Commonwealth does not intend to rely upon the further references to legal advice in the documents in support of its waiver arguments in these proceedings. 14 AWB argues that, even if these additional references are not to be relied upon by the Commonwealth in this case, that does not remove the risk that in another piece of litigation, at some later point, some other party will seek to rely upon these additional references to argue that AWB has thereby waived privilege over other documents. I do not think that this possible future circumstance supports AWB's contention that publication poses a real risk of interference with the processes of this Court or the administration of justice generally. 15 AWB did not base its application on any contention that the first respondent had exercised his powers improperly or for any extraneous purpose. Its application was based solely on principles of contempt of Court. 16 Turning to the balance of convenience, I am not satisfied that the publication of the documents will cause irreparable harm or any serious prejudice to AWB. In my view, the risk of prejudice to which AWB points is remote. 17 I must also take account of the public interest in the conduct of the Inquiry and the first respondent's desire to conduct further proceedings in public at which these additional documents may be the subject of evidence. This consideration outweighs the remote risk of any prejudice to AWB.