mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 ; (2001) 115 FCR 561
Outcome: considered
Billabong relies upon a series of cases in which this principle has been applied, including the decision of Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 ; (2001) 115 FCR 561 at [90] [94]. 12 Counsel for Billabong submitted that the history of this matter shows Mr Armstrong's view of what material is, or is not, required by the rules of procedural fairness, is so erroneous that I ought not accept his evidence that no further documents exist. In particular, counsel points to Mr Armstrong's view that it was unnecessary for him to furnish the Scolari Comerford and Ernst &amp; Young reports, although he did so as a matter of convenience. 13 Section 60 of the Act provided, relevantly: "(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Incorporated Aboriginal Association and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Association disclosed by that examination. (2) The authorised person is entitled at all reasonable times to full and free access to the documents of the Association. (3) The authorised person may make copies, or take extracts from, any such documents." 40 Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50]. 41 What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
It is almost trite law that the rules of procedural fairness entitle a person in Billabong's position to know the grounds upon which Mr Armstrong proposes to rely and an opportunity to respond to matters adverse to its interests: Kioa v West at 585, 628; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [140] , [191]. 39 This does not mean that every piece of information and every document that comes before the decision-maker must be disclosed. The test to be applied in the ordinary case is that stated by Brennan J in Kioa v West at 629 in the words referred to above, namely that the person affected should be given an opportunity to the deal with adverse information that is credible, relevant and significant: see also Miah at [140], [191].
Case: Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550
Outcome: considered
What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552.
Case: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28; 70 ALJR 603
Outcome: cited
The Commissioner contends that the AAT was wrong in finding that the documents upon which it relied disclosed the gist of the advices in the necessary sense. The mere reference to legal advice does not disclose the gist or substance of it. However, the manner of reference to it may do so. The difference may be illustrated by the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12, albeit in the context of the Evidence Act ; (see also Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607). Devereaux submits that the question as to whether or not there has been a disclosure of the substance of advice is a matter of fact and degree rather than a question of law and that any error involved would not be an error of law. In my opinion, that is generally correct although, if the wrong test is applied, there can be an error on a question of law (cf Bennett [2004] FCAFC 237 ; 140 FCR 101 at [68] ). It is unnecessary to pursue detailed examination of this issue as, in my opinion, there are more fundamental questions to be addressed.
Case: Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12
Outcome: cited
The Commissioner contends that the AAT was wrong in finding that the documents upon which it relied disclosed the gist of the advices in the necessary sense. The mere reference to legal advice does not disclose the gist or substance of it. However, the manner of reference to it may do so. The difference may be illustrated by the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12, albeit in the context of the Evidence Act ; (see also Kirby J in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] HCA 15 ; (1996) 137 ALR 28 at 34; [1996] HCA 15 ; 70 ALJR 603 at 607). Devereaux submits that the question as to whether or not there has been a disclosure of the substance of advice is a matter of fact and degree rather than a question of law and that any error involved would not be an error of law. In my opinion, that is generally correct although, if the wrong test is applied, there can be an error on a question of law (cf Bennett [2004] FCAFC 237 ; 140 FCR 101 at [68] ). It is unnecessary to pursue detailed examination of this issue as, in my opinion, there are more fundamental questions to be addressed.
Case: Benecke v National Australia Bank (1993) 35 NSWLR 110
Outcome: cited
Those well known general statements are illuminated by the decision in Benecke v National Australia Bank (1993) 35 NSWLR 110 that was used as an example in the joint judgment in Mann [1999] HCA 66 ; 201 CLR 1. In that case the client, on whose behalf a case was settled by counsel, brought proceedings to set aside the settlement claiming that instructions to settle had not been given. She gave evidence to that effect. It was held that, in those circumstances, the client had waived her legal professional privilege and there could be no objection on the ground of privilege to the evidence of counsel or the other legal representatives being given.
Case: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: cited
Devereaux relies upon issue waiver both to support its notice of contention that the AAT was correct in relation to the release of nine documents and in relation to its notice of cross-appeal against the refusal to release other documents. That concept is dealt with in Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 ; (2006) 151 FCR 341 and goes back, at least, to Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347. In my opinion, it has no application to compliance with a request pursuant to the FOI Act. It only relates to a true forensic situation. No issue in the relevant sense exists in cases such as this.
Case: Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 
Outcome: cited
The production of documents by the Commissioner pursuant to the FOI request was under the control of a Mr Robinson. His evidence, accepted by the AAT, was that the documents were put together and furnished under pressure and that he had intended to claim legal professional privilege where appropriate, but that the press of events was such that he was unable to satisfactorily do so. The failure to claim privilege in relation to the relevant parts of the documents that were produced was inadvertent. There are situations in which a privileged document is inadvertently disclosed, but privilege might be maintained (cf Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538; Boensch v Pascoe [2007] FCA 432 at [38] [39]).
Case: Lombe v Pollak [2004] FCA 264
Outcome: discussed
One question is whether there was voluntary disclosure of the documents ordered to be produced. Devereaux has not seen and does not have a copy of them. Furthermore, the documents said to waive legal professional privilege in the underlying documents were not produced voluntarily but, rather, pursuant to a compulsory process under the FOI Act. Devereaux submits that the Commissioner could have masked the relevant portion of the documents pursuant to s 42 and the failure to do so amounts to waiver of any privilege attaching, referring to Lombe v Pollak [2004] FCA 264. However, the question here is not waiver of privilege in relation to the documents which were produced. The Commissioner is not seeking to assert privilege in relation to any part of those documents. They can be utilised by Devereaux in any way it sees fit. 11 In Lombe [2004] FCA 264 the other party had a copy of the legal advice. At an examination, the party was shown the advice and taken through it paragraph by paragraph and questioned about its contents without objection. There was no claim that the failure to object was inadvertent. Jacobson J applied dicta of Cole J in Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 730 and, not surprisingly, found privilege waived. Spedley 26 NSWLR 711 was a similar case, in that a former officer of the bank was examined without objection on a draft witness statement which had been prepared by the bank's solicitor and provided to the liquidator in answer to a summons under s 541 of the Companies (New South Wales) Code .
Case: Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299; (2005) 60 ATR 339 
Outcome: distinguished
Subject to consideration of the decision of Sundberg J in Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299; (2005) 60 ATR 339, to be discussed later, in my opinion, there has been no voluntary production of the relevant parts of the documents said to waive privilege. 18 Consideration needs to be given to the decision of Sundberg J in Rio Tinto Ltd 224 ALR 299; (2005) 60 ATR 339. It was held that legal professional privilege had been waived in relation to certain documents by reason of what was described as 'issue waiver' (224 ALR 299 at [21] [47]). Sundberg J went on to discuss (obiter) whether disclosure waiver had occurred by reason of reference to advice in a document that was produced and said that he would have so held. His Honour sought to apply the principles laid down in Mann [1999] HCA 66 ; 201 CLR 1. One of the issues discussed was whether or not the respondent voluntarily produced the documents said to waive privilege in the underlying advices. The document had been produced to the other side twice the first pursuant to an application under the FOI Act where no privilege was claimed; the second was in answer to a notice to produce within the course of the litigation before the Court without a claim of privilege. Sundberg J took the view that the document was produced voluntarily and held that it was not relevant that the respondent did not seek to deploy it for any commercial or forensic purpose. With all respect, that reasoning might be applicable if the underlying advice had been produced but, in my opinion, is not applicable to circumstances such as the present. I am, thus, not inclined to follow Sundberg J's dicta. It was, in any event, a particular factual application of the principle and does not purport to lay down any new law. Furthermore, the inadvertent nature of the present disclosure would distinguish this case from the facts before Sundberg J.
Case: Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711
Outcome: cited
In Lombe [2004] FCA 264 the other party had a copy of the legal advice. At an examination, the party was shown the advice and taken through it paragraph by paragraph and questioned about its contents without objection. There was no claim that the failure to object was inadvertent. Jacobson J applied dicta of Cole J in Spedley Securities Ltd (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711 at 730 and, not surprisingly, found privilege waived. Spedley 26 NSWLR 711 was a similar case, in that a former officer of the bank was examined without objection on a draft witness statement which had been prepared by the bank's solicitor and provided to the liquidator in answer to a summons under s 541 of the Companies (New South Wales) Code .
Case: Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 
Outcome: cited
Devereaux relies upon issue waiver both to support its notice of contention that the AAT was correct in relation to the release of nine documents and in relation to its notice of cross-appeal against the refusal to release other documents. That concept is dealt with in Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86 ; (2006) 151 FCR 341 and goes back, at least, to Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347. In my opinion, it has no application to compliance with a request pursuant to the FOI Act. It only relates to a true forensic situation. No issue in the relevant sense exists in cases such as this.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: applied
As the High Court said in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604: ...the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interest it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. 82 The qualification of damages is addressed in [35]: The Applicant is unable to better particularise the respective amounts of the damages claimed under the respective heads of damage until after discovery and or delivery of interrogatories but as presently advised claims the following amounts:- (i) Wages underpaid $34,064 gross as particularised in paragraph 10(e) hereof; (ii) Superannuation underpaid (a) voluntary termination - $158,000 approximately; (b) employers' termination - $48,000 approximately; (iii) loss of employment or the opportunity to properly defend against the misconduct allegations (see (iv), (v), (vi), (vii) and (viii) below); (iv) legal costs incurred which in whole or in part would not have been incurred except for the Respondent's conduct:- (a) AIRC proceedings $60,000 (b) Committal proceedings $20,000 (c) Industrial Magistrates Court proceedings $20,000 (d) Appeal to Full Bench Industrial Relations Commission $20,000 (e) Expenses to prepare proper income tax refunds and miscellaneous $ 6,000 (v) Damages to the Applicant's good name and reputation $100,000 (vi) Damages for emotional and psychiatric injury to self and husband, pain and suffering, loss of life expectancy, loss of enjoyment of life and the amenities of life $2,350,000 (vii) Costs of medical and other treatment and associated expenses $ 220,000 (viii) Loss of future income $ 564,000 nett (ix) Loss of future superannuation $250,000 (x) Discounted fares on flights (10% on full fares) $ 50,000 83 The claimed damages exceed $3.5 million.
Case: Deatons Proprietary Limited v Flew [1949] HCA 60 ; (1949) 79 CLR 370
Outcome: applied
In Deatons Proprietary Limited v Flew [1949] HCA 60 ; (1949) 79 CLR 370, the question was whether an assault upon a customer of a hotel by a barmaid in the employ of the publican company was committed in the course of her employment. Dixon J said at 380: In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable. For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do. 105 Williams J said at 386: The damage to the plaintiff was done by the glass. A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a mode, although an improper mode, of answering his request for a glass of beer.
Case: New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511
Outcome: applied
In New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511, the majority of the High Court, (Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ, with McHugh J dissenting) held that the liability of a school authority, under its non-delegable duty of care over the pupils, does not extend to intentional criminal conduct against a pupil by a teacher employed by the authority. 107 Gummow and Hayne JJ, after referring to the judgment of Sir Owen Dixon in Deatons said, at 591-592: First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having. What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment. 108 Mrs Barrick knew that Ms Holness was directing money to her bank account from Qantas Catering. She was sharing that money with Ms Holness. She knew that the monies being paid into her accounts by Qantas Catering were greatly in excess of the wages and other payments to which she was entitled. Her claim that she thought the monies included Ms Holness' pay is not true. Mrs Barrick cannot hold Qantas Catering liable for the arrangement she had with Ms Holness.
Case: Byrne v Australian Airlines Limited (1995) 195 CLR 410
Outcome: applied
As the High Court make plain in Byrne v Australian Airlines Limited (1995) 195 CLR 410 at 420, damages is not available as a separate remedy. 181 Because of the fraudulent scheme orchestrated by the pay-mistress, Ms Holness, Qantas Catering did not comply with the requirements of cl 13(e) of the Award, in my opinion. This failure, however, does not avail Mrs Barrick, because, in my view, she received payslips which indicated what was being paid to her, or on her behalf, to her bank and other loan accounts; those monies were recorded in payslips which she received, and the monies exceeded the entitlements for the hours that she worked. 182 None of the other causes of action has been made out.
Case: Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277
Outcome: cited
Mrs Manatiy, a British subject, was six years of age when she first came to Australia, in 1956. She travelled on her father's passport, the stamped (though long since cancelled) original having been provided to the Tribunal. The relevant legislation governing entry into Australia at that time was the Immigration Act 1901-1949 (Cth) ("the Immigration Act"). As British subjects, Mrs Manatiy's parents and family then had the right to enter and reside in "any part of the King's Dominions except in so far as that right has been modified or abolished by positive law": Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277 at 305. Though the Immigration Act, s 3(1) imposed some number of prohibitions upon immigration into Australia, none were applied to Mrs Manatiy or to her parents.
Case: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391
Outcome: cited
On 1 June 1959 the Immigration Act was repealed and the Migration Act 1958 (Cth) ("the Migration Act ") came into force. The new Act abolished the common law right of British subjects to enter Australia. It imposed the requirement that any constitutional immigrant wishing to enter Australia had to possess an instrument described as an "entry permit": see s 6 (as enacted in 1958); see also Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at [144] - [145] . 4 Mrs Manatiy remained in Australia until 1973 when she left Australia. She was then aged 23. She returned to Australia in 1979 to visit her parents and she revisited Australia on several subsequent occasions before her entry in December 1998 on a visitor visa. She held a succession of such visas until she was granted a Bridging Visa on 12 March 2004 on account of the visa application which is the subject of these proceedings. 5 The class of visa Mrs Manatiy applied for is described in Sch 2 of the Migration Regulations 1994 as a "Subclass 832 Close Ties" visa. For present purposes the particular requirements of cl 832 she claims she met were those of subcl 832.212(4). It provided: "(4) An applicant meets the requirements of this subclause if the applicant: (a) first entered Australia before the applicant turned 18; and (b) has never held either of the following: (i) a student visa; (ii) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations , for the purposes of a course of study; and (c) has turned 18; and (d) before turning 18, spend the greater part of the period that the Minister regards as the applicant's formative years in Australia; and (e) ceased to hold an entry permit or a substantive visa before turning 18."