mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378
Outcome: cited
In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.
Case: Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164
Outcome: cited
In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.
Case: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112
Outcome: cited
In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.
Case: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928
Outcome: cited
In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.
Case: The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273
Outcome: cited
In Consul Development Pty Ltd v DPC Estates Pty Ltd , Gibbs J (at 398) and Stephen J (at 412) with whom Barwick CJ agreed expressed different views as to the knowledge required to establish liability in circumstances of this kind. The English Courts have expressed different views: Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4 ; [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. It appears that the English view has not been accepted in New South Wales and Stephen J's view has been preferred to that of Gibbs J: Yeshiva Properties No 1 Pty Ltd and Others v Marshall (2005) 219 ALR 112 per Bryson JA at [18]-[22]. Because of the uncertainty in the law in Australia on this topic, it would be difficult to conclude that a plea of the kind in par 28 was untenable: Short (as Executrix of the Estate of Short (decd)) v Crawley (No 25) [2005] NSWSC 928 per White J at [43]; The Bell Group Ltd (in liq) v Westpac Banking Corporation and Ors (No 5) [2004] WASC 273. However, because no issue was raised by the second respondents as to the kind of knowledge required, I do not need to explore this complex issue.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
Section 79 of the Act is in the same terms as s 75B of the Trade Practices Act 1974 (Cth) (the Trade Practices Act ) which was considered by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. Section 75B plays a similar role in the Trade Practices Act to that played by s 79 in the Act . A person will be accessorily liable to a contravention of a provision of the Trade Practices Act if the person does any of the matters prescribed in s 75B. In Yorke v Lucas the High Court considered each of the paragraphs in s 75B. In respect to paragraph (a) the Court observed that these words have been taken from the criminal law and that to be liable under s 75B(a) a party needed to have intentionally participated in the contravention. The Court said at 668: 'The nature of the prohibition imposed by s. 52 is, however, governed by the terms in which it is created and the context in which it is found. Section 75B , on the other hand, in speaking of aiding, abetting, counselling or procuring, makes use of an existing concept drawn from the criminal law and unless the context requires otherwise, there is every reason to suppose that it was intended to carry with it the settled meaning which it already bore: cf. Barker v. The Queen [1983] HCA 18 ; (1983) 153 C.L.R. 338. Nor is there any reason to suppose that because the application of s. 75B may occur in conjunction with a provision such as s. 52 , which requires no intent, it must also be construed so as to dispense with intent as an element of aiding, abetting, counselling or procuring. In Giorgianni v. The Queen it was held that secondary participation required intent based upon knowledge, notwithstanding that the statutory provision creating the principal offence imposed strict liability.' 63 The High Court held that a person will only be guilty of the offence of aiding and abetting or counselling and procuring the commission of an offence if the person intentionally participates in it. Therefore, to form the requisite intent the person must have knowledge of the essential matters which go to make up the offence. It determined that the same knowledge should be required for a contravention of s 75B of the Trade Practices Act . 64 The majority then addressed s 75B(c) and said at 670: 'There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.'
Case: Re HIH Insurance Ltd (In Liq) (2002) 41 ACSR 66
Outcome: cited
In my opinion, s 79 of the Act would be construed in the same way as s 75B of the Trade Practices Act : see Re HIH Insurance Ltd (In Liq) (2002) 41 ACSR 66. 68 It follows therefore that a party cannot be involved in a contravention of s 183(1) of the Act unless the party has actual knowledge of the elements of s 183(1). The elements that must be established for a contravention of s 183(1) are that the person referred to in s 183(1) was an officer or employee of the corporation; that he or she acquired information because he or she was an officer or employee; that the person made improper use of that information; that the person did so to gain an advantage for themselves or someone else or to cause detriment to the corporation. 69 In my opinion, the plea that the second respondents had constructive knowledge of the matters contained in par 28 or the female second respondents had constructive knowledge as pleaded in pars 29, 30, 32 and 33 could not support a claim that the second respondents contravened s 183(2) by being involved in a contravention of s 183(1). Those pleas are untenable.
Case: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Outcome: cited
In my opinion, the applicant should be required to give particulars of the facts and circumstances which existed after the first respondent was employed by the second respondents which should have put the second respondents on notice to make the inquiries or take the steps pleaded in par 28: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601. 84 As I have already mentioned, in a number of the paragraphs which follow it is said that the acts, conduct and knowledge of each of the second respondents is imputed to all of them. In my opinion, that plea requires particularisation. The applicant ought to particularise the facts and circumstances which allow it to be said that, as a consequence, the acts, conduct and knowledge of each of the second respondents is imputed to all of them. 85 Lastly, as the applicant conceded, the applicant needs to give particulars of the loss or damage which the applicants says that he suffered by reason of the respondents' breaches.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Outcome: discussed
In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 559 Goldberg J said that the concept of anticipated proceedings involves "the notion that there is a reasonable probability or likelihood that such proceedings will be commenced not that they will be but rather that more probably than not they will be." 55 The weight of authority now seems to favour the Mitsubishi "real prospect" test. If necessary, I would prefer that to the Safeway "more likely than not" test. However, for the reasons which will hereafter appear, I am satisfied that the higher standard has been met in the present case. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.
Case: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332
Outcome: cited
Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] . 55 The weight of authority now seems to favour the Mitsubishi "real prospect" test. If necessary, I would prefer that to the Safeway "more likely than not" test. However, for the reasons which will hereafter appear, I am satisfied that the higher standard has been met in the present case. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.
Case: Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026
Outcome: cited
Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] . 101 There was some complaint in the respondents' submissions of the "formulaic" assertion by Mr Alexander and Mr Williams of a dominant purpose. However, I note that in Microsoft at [77] there was criticism of a deponent who had used the adjective "primary". His Honour thought that it was "unsatisfactory that (the witness) has not spoken in the language of dominant purpose". Thus there may be something of a dilemma for witnesses swearing affidavits in support of privilege claims. Witnesses may feel they have to use either the formulaic term "dominant" or search around for some synonym a process which may be equally formulaic. In Grant v Downs at 678 Barwick CJ preferred the word "dominant" to describe the relevant purpose. In his Honour's opinion, neither "primary" nor "substantial' satisfied the true basis of the privilege. So it may be that the formula, however tedious, will continue to be used.
Case: Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503
Outcome: cited
Subsequent decisions have adopted a somewhat lower test. In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [19] Batt JA, with the concurrence of other members of the Victorian Court of Appeal, held that there must be a "real prospect" of litigation, as a distinct from a mere possibility, but it does not have to be more likely than not. In Microsoft Corporation v Ben Zhong Fan [2003] FCA 1026 at [73] - [75] Jacobson J preferred the Mitsubishi view, as did Allsop J in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] .
Case: Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389
Outcome: cited
The respondents point out that ss 25 and 26 are to be contrasted. Section 25 does not authorise the Commission to delegate its statutory functions and powers to its own staff members. It may only delegate those functions and powers to a member of the Commission; see also the definition of "Commission" in s 4 which includes a member of the Commission or a Division of the Commission performing functions of the Commission. By referring to a member of the Commission or a Division of the Commission, the definition is referring to members to whom a power has been delegated under s 25 and a Division established under s 19: Australian Competition and Consumer Commission v Rural Press Ltd (No. 2) [2000] FCA 66 ; (2000) 96 FCR 389 at [13] . 60 The respondents say that the Act has expressly regulated the extent to which the Commission may delegate the exercise of its powers and functions. Certain powers are expressly conferred on a member of the Commission, as opposed to the Commission acting in a meeting, e.g. issuing a notice under s 155. Otherwise the powers and functions vested in the Commission are intended to be exercised by members of the Commission acting in a meeting at which a quorum is present or through a Division established by s 19 , or through a member acting under a delegation under s 25. 61 The conclusion, the respondents submit, is that the Act contains a clear statutory indication that the Commission is not to delegate to one or more members of its staff the power to decide whether to institute proceedings under Pt VI. This is consistent with the Commission's published documents. For example, in a public statement in 2006 the Commission said: "Decisions to start court action, to approve or reject a major merger, or to authorise anti-competitive behaviour if it is shown to be in the public interest, are only made by the Commission."
Case: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Outcome: applied
The reasonable anticipation test is not a question of the exercise of some power by the Commission, such as the power to commence litigation. It is rather concerned with a state of mind which may or may not exist at a particular point in time. Only human beings can anticipate events. Whether the state of mind of a particular individual can be attributed to an incorporated body such as the ACCC depends on the particular law in question, in the present case the common law rules relating to legal professional privilege: see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506-509. One does not look in this context for the "directing mind and will" of the ACCC: see Lord Hoffmann's explanation in Meridian at 509-511 of the sometimes misunderstood decision in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705. 64 The law of legal professional privilege necessarily assumes that the privilege may, indeed usually will, arise before the actual commencement of litigation otherwise there would be no point in the concept of reasonable anticipation. Therefore, in applying that law to the ACCC it would be misleading to focus on the state of mind only of those who have the power to commence litigation on the Commission's behalf. Looking at the policy behind the law of legal professional privilege (cf the approach of Lord Hoffmann to the legislation in question in Meridian at 511), the protection needs to apply at a time when the prospect of litigation is less than certain (whether the Safeway or the Mitsubishi test applies). By this stage there is a need for frank and candid communication between client and lawyer, or other persons such as potential witnesses, on the subject matter of the litigation no less than there is when the litigation actually starts. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at [35] . The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However if, as matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation.
Case: Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705
Outcome: cited
The reasonable anticipation test is not a question of the exercise of some power by the Commission, such as the power to commence litigation. It is rather concerned with a state of mind which may or may not exist at a particular point in time. Only human beings can anticipate events. Whether the state of mind of a particular individual can be attributed to an incorporated body such as the ACCC depends on the particular law in question, in the present case the common law rules relating to legal professional privilege: see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506-509. One does not look in this context for the "directing mind and will" of the ACCC: see Lord Hoffmann's explanation in Meridian at 509-511 of the sometimes misunderstood decision in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705.