mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362
Outcome: followed
33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 187 ALR 362 at 369, [36] . Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.
Case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Outcome: followed
is well established that the procedure to be followed by the Court on the return and the calling on of a notice to produce requires a three stage procedure: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372. At 381 Moffitt P (with whom Hutley JA and Glass JA agreed) said: "The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise."
Case: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Outcome: followed
is well established that the procedure to be followed by the Court on the return and the calling on of a notice to produce requires a three stage procedure: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372. At 381 Moffitt P (with whom Hutley JA and Glass JA agreed) said: "The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise."
Case: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233
Outcome: followed
submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].
Case: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Outcome: followed
submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].
Case: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Outcome: followed
submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Outcome: followed
submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].
Case: University of Western Australia v Gray (No 12) [2007] FCA 396
Outcome: followed
submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject-matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject-matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233 ; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 ; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410-411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 ; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] ; Heydon JD, Cross on Evidence (7 th Australian ed, 2004), [25265].
Case: Hilton v Lord Granville [1841] EngR 827 ; (1841) 4 Beav 130 ; 49 ER 288
Outcome: followed
has been well established for well over one hundred and fifty years that a party moving a court for an injunction ex parte, that is to say in the absence of the party against whom the order is sought, is obliged to put before the Court all the material and relevant facts and circumstances of which it is aware which bear upon the determination of the application for the relief sought: Hilton v Lord Granville [1841] EngR 827 ; (1841) 4 Beav 130 ; 49 ER 288 ; Hemphill v M'Kenna (1842) 3 Dr &amp; War 183 at 194. If a party fails to carry out this obligation, such a failure is sufficient in itself to warrant the discharge or setting aside of the ex parte order made by the Court.
Case: Hemphill v M'Kenna (1842) 3 Dr &amp; War 183
Outcome: followed
has been well established for well over one hundred and fifty years that a party moving a court for an injunction ex parte, that is to say in the absence of the party against whom the order is sought, is obliged to put before the Court all the material and relevant facts and circumstances of which it is aware which bear upon the determination of the application for the relief sought: Hilton v Lord Granville [1841] EngR 827 ; (1841) 4 Beav 130 ; 49 ER 288 ; Hemphill v M'Kenna (1842) 3 Dr &amp; War 183 at 194. If a party fails to carry out this obligation, such a failure is sufficient in itself to warrant the discharge or setting aside of the ex parte order made by the Court.
Case: Garrard (T/As Arthur Anderson &amp; Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Outcome: followed
was observed by Mahoney AP (with whom Clarke JA agreed) in Garrard (T/As Arthur Anderson &amp; Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677: "There is, in my opinion, no distinction for this purpose between an order in the nature of an injunction and an order which otherwise creates or confirms rights which otherwise would not exist. The obligation of candour and diligence exists in such a case." See also Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 at [11] .
Case: Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
Outcome: followed
performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] : "In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives ." (emphasis added) Allsop J's observation that matters should not be stated "obliquely" is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred "delphically" to "means and sources". See also Grant Matich &amp; Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.
Case: Grant Matich &amp; Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375
Outcome: cited
performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38] : "In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives ." (emphasis added) Allsop J's observation that matters should not be stated "obliquely" is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred "delphically" to "means and sources". See also Grant Matich &amp; Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.
Case: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: followed
respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).
Case: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 236 ALR 42
Outcome: cited
In Minister for Immigration and Multicultural Affairs v SZFDE and Anor (2006) 236 ALR 42 , French J said at [129]-[130]: There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person's participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if SZFDE and her family appeared before the tribunal they would say something inconsistent with his proposed submission to the minister. The advice amounted to a representation that the tribunal process was a sham and that participation in it might prejudice SZFDE's prospects of a successful outcome on the basis of a submission to the minister. SZFDE's negative response to the hearing invitation was procured by the dishonest conduct of her purported representative. To that extent her consent to the disposition of her application for review without a hearing was of no effect. She was denied, by fraud, the opportunity to appear at and be heard by the tribunal on a matter of vital importance to her future and that of her family. The decision-making process; that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7 , was corrupted. The importance of the appearance before the tribunal to the outcome of the review was highlighted by the tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with SZFDE because of her non-appearance.
Case: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
Outcome: followed
In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30] - [33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal's statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]: We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-&agrave;-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-&agrave;-vis the visa applicant: SZFDE , at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.