mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Seven Network Limited v News Limited [2005] FCA 142
Outcome: referred to
The evidence required to establish the professional relationship necessary to establish independence will depend on the circumstances. In the case of a person engaging a private firm of solicitors, independence almost invariably will be established by those facts alone. In the case of a lawyer employed by a private company more may be required to establish independence, particularly if there is evidence suggesting that the solicitor was on occasion asked to advise on management or commercial matters (see, for example, Seven Network Limited v News Limited [2005] FCA 142 at [4] and [38] per Tamberlin J). I do not think Graham J in Telstra was saying any more than that in the circumstances before him the evidence was insufficient to establish the required degree of independence of the internal legal advisers.
Case: Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379
Outcome: followed
The claims of privilege are to be determined by reference to the common law principles. Section 118 of the Evidence Act 1995 (Cth), which creates a statutory legal advice privilege, applies only to the adduction of evidence. Where, as in the present case, privilege is claimed at the pre-hearing stage of discovery, the claim is to be determined by reference to the common law: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at 59 [16] - [17] per Gleeson CJ, Gaudron and Gummow JJ, 73-4 [64] per McHugh J and 100-1 [149] per Callinan J. See also Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at 571 [16] per Gleeson CJ and Gummow J, 606 [135] per Gaudron J and 629 [199] per McHugh and Callinan JJ. The Federal Court Rules , in particular O 33 r 11, do not extend the operation of s 118 beyond 'circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence': Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 at 382-3 [17] per Branson J; see also at 384-5 [33] per Allsop J.
Case: Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445
Outcome: distinguished
First, they submit that the onus was on the applicant to establish his claim for privilege and that included adducing evidence that the Legal and Advice Branch was independent of the OWS. It was submitted that the applicant had put forward no evidence, or insufficient evidence, of the Legal and Advice Branch's independence. It was submitted that this case is similar to that before Graham J in Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 (" Telstra ") in which his Honour held that the absence of evidence establishing the independence of the internal legal advisers was fatal to the claim of privilege. 25 The evidence required to establish the professional relationship necessary to establish independence will depend on the circumstances. In the case of a person engaging a private firm of solicitors, independence almost invariably will be established by those facts alone. In the case of a lawyer employed by a private company more may be required to establish independence, particularly if there is evidence suggesting that the solicitor was on occasion asked to advise on management or commercial matters (see, for example, Seven Network Limited v News Limited [2005] FCA 142 at [4] and [38] per Tamberlin J). I do not think Graham J in Telstra was saying any more than that in the circumstances before him the evidence was insufficient to establish the required degree of independence of the internal legal advisers.
Case: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: followed
In Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 the High Court held that salaried lawyers within the Government were legal advisers to a Government department for the purposes of legal professional privilege and the requirement of independence was discussed in that context. Mason and Wilson JJ said (at 62): "Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment." 26 In this case the applicant might have put forward more detailed evidence as to how the Legal and Advice Branch operated and its role in the OWS organisation. However, in my opinion, this case has similarities with the facts in Waterford and, subject to the respondents' second submission, the necessary degree of independence has been established, or, put another way, it has been established that the Legal and Advice Branch was a legal adviser for the purposes of legal professional privilege. 27 Secondly, the respondents submitted that the fact Ms Byrne, as head of the Legal and Advice Branch, was the decision-maker meant that documents brought into existence for the purpose of submission to the Legal and Advice Branch could not have been brought into existence for the purpose of obtaining legal advice. It was submitted that they must have been brought into existence as part of the process of making a recommendation to the Legal and Advice Branch. I reject this submission. One of the Legal and Advice Branch's functions was to provide legal advice and Mr Ronson said that from 18 August 2006 it was clear to him that he was going to seek legal advice in relation to the matter. He said that some time between the end of September 2006 and 5 October 2006 he sought legal advice from the Legal and Advice Branch. I infer that it was not until some time after 23 October 2006 that he made his recommendation and Ms Byrne made her decision. In those circumstances, the fact that the head of the Legal and Advice Branch was the decision-maker does not foreclose a conclusion that a purpose for the creation of the documents was the obtaining of legal advice. 28 Although I reject the respondents' submissions to the effect that the applicant had not shown the necessary degree of independence for the purpose of legal professional privilege none of my conclusions on this issue affect my conclusion on the first issue, namely, that the applicant has failed to establish that the dominant purpose for the creation of the documents was the obtaining of legal advice.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124
Outcome: cited
7 rule 9 of the Rules applies to service outside the jurisdiction in addition to service within Australia. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [8] , Allsop J noted that the various meanings that can be attributed to the word 'impractical' include 'practically impossible' or ' that (which) cannot be carried out or done '. I am satisfied that it has been impractical to serve the documents in the manner prescribed in the Rules. I am also satisfied that the proposed course of service, by delivering a copy of the documents both by hand and by mail to Mr Sood at the residential address at which he appears to reside and at his business address and by email at his last known email address, is appropriate for the purpose of bringing the documents to Mr Sood's notice. Accordingly, I make orders 1 to 5 in the notice of motion. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 15 October 2009 Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: The respondents did not appear for this notice of motion. Date of Hearing: 8 October 2009 Date of Judgment: 8 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1166.html
Case: King v Northern Territory of Australia [2007] FCA 944
Outcome: cited
area for which the determination is sought is, as mentioned above, various allotments in the locality of the town of Elliott. The determination area is part of Mudburra-Jingili country lying to the south and east of the determination area recognised in the matter of King v Northern Territory of Australia [2007] FCA 944. (Hereafter referred to as the Newcastle Waters matter.) The proximity of the determination area to that of Newcastle Waters is relevant to this proceeding as the Applicants are the same estate groups recognised as Native Title Holders by the Newcastle Waters Determination. Schedule A of the parties minute of proposed orders describes the determination area by reference to lot and portion numbers and an accompanying map (referred to as schedule B) clearly identifies the location of all parcels. The parties' joint submission informs the Court that section 47 B of the Native Title Act 1993 (Cth) (the Act) have been met in relation to a number of the parcels, with the effect that any prior extinguishment of native title over these parcels can now be disregarded. Section 87 of the Act sets out the Court's power to make orders sought by consent of the parties. That section requires the period of notice under s 66 of the Act to have elapsed, that a signed copy of the agreed orders has been filed with the Court, and that the Court is satisfied that the orders are within its power and appropriate to make.
Case: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62
Outcome: cited
discretion conferred by s 87(1) of the Act must be exercised judicially, and in exercising it, the Court must have regard to the object and purposes of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7]. The words of the section make it clear that the question for the Court is whether it is appropriate to make an order in the terms of the agreement reached between the parties, with the central focus of the section being the existence of an agreement. Satisfying the Court that it is appropriate for an order to be made should not be seen as the last hurdle to be overcome before the parties reach their ultimate goal of a consent determination of native title. Instead s 87 should be regarded as the opportunity for the Court to recognise the parties' success in reaching the ultimate goal of a negotiated agreement, and facilitating that agreement by making an appropriate determination in accordance with its terms.
Case: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Outcome: cited
North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [61] : " ... when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis...."
Case: Munn (for and on behalf of the Gungari People) v Queensland (2001) FCA 1229
Outcome: cited
Munn v Queensland [2001] FCA 1229 Emmett J observed that the Court's deliberations on an application under s 87: "... would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely." The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court. The parties have had the benefit of independent and competent legal representation in arriving at this agreement, the terms of the order are clear and the agreement has been produced as a result of a process of negotiation. In this matter the Northern Territory is the sole respondent party. It is clear on the evidence before me that it has taken a real and significant interest in the proceedings. Before the proposed consent orders were signed the Northern Territory had Emeritus Professor Sansom, who had also been the expert anthropologist for the Northern Territory in the Newcastle Waters matter, consider the anthropological material going to the existence of native title. Professor Sansom's queries in relation to the material initially provided in this matter were subsequently answered to his satisfaction by the applicants. Furthermore, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title. I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory. There can be no doubt about the jurisdiction of the Court to make the orders sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded. The proposed order set out details of each of the matters mentioned in s 225 thus satisfying the requirements of s 94A of the Act.
Case: AR Jamieson Investments Pty Ltd v Robak Engineering &amp; Construction Pty Ltd [1998] VSC 69
Outcome: cited
Practically speaking, Black &amp; Decker had no alternative to commencing this proceeding in the Federal Court or some other "prescribed court" i.e. the Supreme Court of a State or Territory; see Patents Act 1990 (Cth) s 120(1) and the definition of "prescribed court" in Sch 1. Such a proceeding could have been brought in "another court having jurisdiction to hear and determine the matter". However the Federal Magistrates Court is not such a court, nor is the County Court of Victoria, although it may have jurisdiction to determine patent infringement issues in the course of other proceedings: AR Jamieson Investments Pty Ltd v Robak Engineering &amp; Construction Pty Ltd [1998] VSC 69 ; Bucknell D, Beattie K, Goatcher A, Rofe H, Australian Patent Law (LexisNexis Butterworths, 2004) at 186.
Case: Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57
Outcome: cited
The respondent, which vigorously prosecuted a cross-claim for revocation of Black &amp; Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].
Case: Axe Australasia v Australume [2006] FCA 844
Outcome: cited
The respondent, which vigorously prosecuted a cross-claim for revocation of Black &amp; Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].
Case: Black &amp; Decker Inc v GMCA Pty Ltd (No 2) (2008) 76 IPR 99
Outcome: cited
The respondent has recently changed its name to Sunaone Pty Ltd. Under its former name GMCA Pty Ltd it was found to have infringed Black &amp; Decker's standard and innovation patents: Black &amp; Decker Inc v GMCA Pty Ltd (No 2) (2008) 76 IPR 99. I subsequently ordered that Black &amp; Decker's costs be the subject of a gross sum order under O 62 r 4(2)(c) and (d) of the Federal Court Rules : Black &amp; Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737.
Case: Black &amp; Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737
Outcome: cited
The respondent has recently changed its name to Sunaone Pty Ltd. Under its former name GMCA Pty Ltd it was found to have infringed Black &amp; Decker's standard and innovation patents: Black &amp; Decker Inc v GMCA Pty Ltd (No 2) (2008) 76 IPR 99. I subsequently ordered that Black &amp; Decker's costs be the subject of a gross sum order under O 62 r 4(2)(c) and (d) of the Federal Court Rules : Black &amp; Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737.
Case: Black &amp; Decker Inc v GMCA Pty Ltd (No 5) [2008] FCA 1738
Outcome: cited
Black &amp; Decker elected to take an account of profits, which were duly assessed at $77,275.10: Black &amp; Decker Inc v GMCA Pty Ltd (No 5) [2008] FCA 1738. Under O 62 r 36A where a party is awarded judgment for less than $100,000 for a money sum or damages any costs ordered to be paid will be "reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders". A gross sum would be an amount "allowable" under O 62. 8 I am satisfied the Court should otherwise order. The case was a substantial one concerning patent and design infringement and validity. The trial ran for seven days. There was substantial expert evidence and no less than 45 pieces of prior art advanced at various times by the respondent.
Case: LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10
Outcome: cited
The respondent, which vigorously prosecuted a cross-claim for revocation of Black &amp; Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].
Case: Seven Network News Limited v News Limited [2007] FCA 2059
Outcome: followed
The relevant principles and details of previous cases where O 62 r 4(2)(c) gross sum assessments have been made are summarised by Sackville J in Seven Network News Limited v News Limited [2007] FCA 2059 at [25] - [34] . I incorporate that passage in these reasons. 5 Mr McGregor identified 10 items where he disagreed with Ms Gourlay's assessment. With one exception, it seemed to me that Ms Gourlay had taken quite a conservative approach and that her opinion should be accepted. The one exception was in relation to expert witness fees where the fees paid were very much in excess of the scale rate. I thought the sum suggested by Ms Gourlay should be reduced by $33,000. 6 The net result is that I assess the gross sum at $825,000. By way of a check, this sum is roughly half of the amount actually paid by Black &amp; Decker, so that gives additional comfort that the gross sum assessed is not excessive.
Case: Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788
Outcome: cited
The respondent, which vigorously prosecuted a cross-claim for revocation of Black &amp; Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].
Case: Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287
Outcome: cited
The respondent, which vigorously prosecuted a cross-claim for revocation of Black &amp; Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].
Case: Salfinger v Niugini Mining (No 3) [2007] FCA 1532
Outcome: cited
On 8 October 2007 I ordered that the separate question to be determined be answered in the negative with judgment for the respondents with costs: Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532. I found that the applicant's claim was entirely without merit and fraudulent. I gave the applicant leave to file written submissions within seven days to show cause why costs should not be on an indemnity basis. 2 The applicant filed three submissions, each bearing the date 16 October, although they were in fact filed later. 3 Essentially the applicant's arguments against indemnity costs were based on his status as an unrepresented litigant who was not legally qualified. He made various complaints about the substantive merits of my decision and alleged procedural injustices, but I do not see that as relevant for present purposes.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
Section 43(2) of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to award costs in a proceeding. Traditionally costs only depart from the ordinary party-party basis where there is a particular or special circumstance: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 per Shepphard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. An order for indemnity costs aims to compensate a party fully for costs incurred when the Court takes the view that it has been innocently and unreasonably subjected to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). 5 In Colgate-Palmolive Shepphard J (at 232-235) summarised some of the special circumstances which have led to an award of indemnity costs, including the making of allegations of fraud knowing them to be false, making of irrelevant allegations of fraud, commencing proceedings in wilful disregard of known facts, the making of allegations which ought never to have been made and the undue prolongation of a case by groundless contentions. In these circumstances a party's behaviour in the conduct of the proceeding means it is so unreasonable as to be unjust that the innocent party is limited in its recovery to party and party costs: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1350 at [4] .