mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331
Outcome: applied
In the affidavit sworn by the applicant on 11 September 2008 and filed in support of his Application, the sole ground relied upon by the applicant for setting aside the Bankruptcy Notice was that he had a " counter-claim, set off or cross demand equal to or exceeding the amount in the Bankruptcy Notice " which he could not have set up in the original proceedings. The " original proceedings " in the present case are the Common Law proceedings in the Supreme Court of New South Wales in which the judgment for $4,794.75 was obtained (see Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 at [3] (p 332)). 9 In handwriting, in par 2 of the applicant's affidavit, the applicant set out the following particulars of that ground: Pinata Pty Ltd paid William James Hamilton an amount of $28000 for conducting its Administration and amount of over $25000 in 1996 for a progress payment to him as a Joint Receiver of the Pinata Pty Ltd and Partners Partnership under a Deed of Dissolution and Appointment of Receivers in which William James Hamilton should be disentitled to receive no remuneration because of his acts of wilful neglect and wilful default under Ch 6.3 of the Deed of Dissolution and Appointment of Receivers. Further details of the acts of wilful neglect and wilful default are set out in the accompanying Notice of Motion filed in the Supreme Court of NSW Equity Division on 1 Aug 06 and its annexed affidavit which is attached or accompanying this Notice to Respondent. 10 The applicant attached to his affidavit a copy of the Notice of Motion referred to in par 2 of his affidavit, being a Notice of Motion filed by him on 1 August 2006 in Supreme Court Proceedings No 3346 of 2001 between Pinata Pty Limited, as plaintiff, and the present respondent, as first defendant (" the Supreme Court proceedings "). The other defendant parties to the Supreme Court proceedings, in the order in which they were named in those proceedings, were: Robert Peter Leigo Yvonne Lesley Leigo Geoffrey Naunton Davies Kerrie Joy Davies Neill Robert Leigo Bryce Geoffrey Lyle Killen (the present applicant) 30 Subsection 40(1)(g) of the Act has been considered in many authorities over the years. A useful summary of the relevant principles is found in the judgment of Lindgren J in Glew [2003] FCA 373 ; 198 ALR 331 at [8] to [12] (333 334). I will not set out in these Reasons for Judgment what his Honour said in those paragraphs but I do accept the statements made by his Honour as correct statements of principle and I propose to apply them in the present case. 31 Before doing so, I will rule on the admissibility of the material tendered by the applicant. 32 Many objections were taken to the material on behalf of the respondent. I should say that most of the objections were well taken. Some concerned the fragmented nature of the material. Some were objections as to form and others were taken on the basis that the material was irrelevant. The respondent's Notice of Objections may be found in the Court file.
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: applied
The statements in the affidavits of Mr Pearson and Mr Owbridge walk a very fine line between the maintenance of confidentiality in the legal advice and implied assertions that are inconsistent with it: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] ; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [52] .
Case: DSE (Holdings) Pty Ltd v Intertan [2003] FCA 384 ; (2003) 127 FCR 499
Outcome: applied
The question of whether the content has been put in issue or deployed lies at the heart of the principle of waiver. I am not satisfied that the assertions necessarily lay open the content of the confidential communications to scrutiny: DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499 at [58] . 20 It follows that the motion must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 4 April 2008 Counsel for the Applicant: S Gageler SC with M Darke Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: T Howe QC with R A Dick Solicitor for the Respondent: Australian Government Solicitor Date of Judgment: 4 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/449.html
Case: Mann v Carnell (1999) 201 CLR
Outcome: referred to
The statements in the affidavits of Mr Pearson and Mr Owbridge walk a very fine line between the maintenance of confidentiality in the legal advice and implied assertions that are inconsistent with it: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] ; Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [52] .
Case: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Outcome: applied
said that, based on the material that was before me, I am impelled to the view that the answer to the issue reflected in the question posed in the notice of motion is attended with sufficient doubt that, if it were the subject of separate decision prior to the determination of other issues, the strong likelihood is that the unsuccessful party would appeal. Contrary to the submission of the Institute referred to in [19] above, that is a factor which I am entitled to take into account. The possibility that '... the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the Court and undesirable fragmentation of the proceedings ...' was certainly a factor taken into account by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(5)(c)] . The experience of French J is echoed in the observations of Einstein J in Idoport at [6]: 'The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings ...' In my view, the proposition embodied in the last sentence of the extract from his Honour's reasons should be the guiding criterion, namely, that '... it must be possible to clearly see that [the separate determination of an issue] will facilitate the quicker and cheaper resolution of the proceedings ...' (emphasis added), before one departs from the usual course of determining all issues at the one time. Adopting that criterion, for the reasons that follow, I am not satisfied that there should be separate determination of the issue reflected in the question posed in the notice of motion, as amended with leave on the hearing of the motion. In my view, it is far from clear that there will not be an overlap of issues and witnesses as between the threshold issue sought to be separated whether the conduct of the respondents in making the media releases or any representation that may be conveyed by either release is conduct in trade or commerce and what has been described as the merits issue whether such conduct was misleading or deceptive and/or be likely to mislead and/or deceive in contravention of s 52 of the TPA. Resolution of these issues is infected with questions of fact as well as questions of law. That, in itself, would not be decisive against separation of the kind sought, but the very nature of the questions of fact, in particular the truth or falsity of the representations actually conveyed by the media releases (as distinct from those pleaded) suggests that there will be overlap between the two issues.
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Outcome: cited
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 Branson J observed that the authorities show that O 29 r 2 has been relied on to support the making of orders that have modified the ordinary or general rule in the following way (at [7]): '(a) by requiring that certain questions, formulated by the order, be decided separately from (and presumably, before) any other questions in the proceeding on the basis of a special case stated in accordance with O 50 r 1 (see, for example, Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328); (b) by requiring the determination of a preliminary issue of law in circumstances in which it was unnecessary for any facts to be stated or evidence to be adduced (see, for example, Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442; 101 ALR 350); (c) by requiring the determination of certain preliminary questions of law as to the competence of the case of the applicant on the basis of certain agreed facts (see, for example, Pritchard v Racecage Pty Ltd (1996) 64 FCR 96; 135 ALR 717 and on appeal, (1997) 72 FCR 203; 142 ALR 527; South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; 157 ALR 443); (d) by requiring the separate trial "as a preliminary issue" of certain of the claims made by the applicant (see, for example, Comite Interprofessionnel des Vins des Cotes de Provence v Bryce (1996) 69 FCR 450); (e) by requiring that the question of the respondents' liability be tried separately, and that any question as to the quantum of any damages to be paid by the respondents, or any of them, to the applicants, or as to the taking of any account of the respondents' profits, be tried separately and at a dated to be fixed after the determination of the question of liability (see, for example, Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567; 75 ALR 601).'
Case: Tallglen Pty Ltd &amp; Anor v Pay TV Holdings Pty Ltd &amp; Ors (1996) 22 ACSR 130
Outcome: cited
all issues of fact and law in a proceeding will be determined at the one time by the Court following a trial. As was said (by Giles CJ in Comm Div) in Tallglen Pty Ltd &amp; Anor v Pay TV Holdings Pty Ltd &amp; Ors (1996) 22 ACSR 130 in relation to Part 31 r 2 of the (NSW) Supreme Court Rules (the equivalent of O 29 r 2(a) of this Court's rules) (at 141 142): 'In the ordinary course all issues in proceedings should be decided at the one time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expenses and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties' dispute.'
Case: Australian Competition and Consumer Commission v Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: referred to
There is a dispute as to the reach of the similar provision to s 12CA(1) contained in s 51AA of the Trade Practices Act 1974 (Cth): see Australian Competition and Consumer Commission v Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 at [5] [7] per Gleeson CJ, at [38] [46] per Gummow and Hayne JJ, at [75] [77] per Kirby J, at [160] per Callinan J. 465 I do not need to enter this debate because the claim depends upon ASIC establishing that Citigroup was under a fiduciary duty to Toll, which it breached by failure to avoid the five alleged conflicts of interest. The claim fails for the reasons given above. 466 The first insider trading claim is that Citigroup, through Mr Manchee, sold 192,352 shares in Patrick, at or shortly after 3:37pm on 19 August 2005 while in possession of inside information. The inside information is said to be a supposition made by Mr Manchee at about 3:30pm during the 'cigarette on the pavement conversation' with Mr Darwell, that Citigroup was acting for Toll in relation to the takeover of Patrick: see Further Amended Statement of Claim [143] [150].
Case: Adler v ASIC [2003] NSWCA 131 ; (2003) 46 ACSR 504
Outcome: referred to
The findings of Santow J on this question were unaffected by the decision of the Court of Appeal: see Adler v ASIC [2003] NSWCA 131 ; (2003) 46 ACSR 504 per Mason P, Beazley and Giles JJA.
Case: Andar Transport Pty Limited v Brambles Limited [2004] HCA 28 ; (2004) 217 CLR 424
Outcome: referred to
The effect of the Australian and English authorities referred to above is that where a fiduciary relationship is said to be founded upon a contract, the ordinary rules of construction of contracts apply. Thus, whether a party is subject to fiduciary obligations, and the scope of any fiduciary duties, is to be determined by construing the contract as a whole in the light of the surrounding circumstances known to the parties and the purpose and object of the transaction: see Pacific Carriers Limited v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Lion Nathan Australia Pty Limited v Coopers Brewery Limited [2006] FCAFC 144 ; (2006) 156 FCR 1 at [46] per Weinberg J. The same approach applies to exclusion clauses: see Darlington Futures Limited v Delco Australia Pty Limited [1986] HCA 82 ; (1986) 161 CLR 500 at 510 per Mason, Wilson, Brennan, Deane and Dawson JJ; Andar Transport Pty Limited v Brambles Limited [2004] HCA 28 ; (2004) 217 CLR 424 at [122] per Callinan J.
Case: Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2007] NSWSC 350
Outcome: cited
Citigroup has established Chinese walls between employees who work in the private side and the public side of its business. It is apparently now more common to describe these structures by the anodyne term "information barriers": see Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2007] NSWSC 350 at [4] . I prefer the traditional description, Chinese walls. 10 The issues which arise in the present proceedings raise, at least in part, the question of whether Citigroup's Chinese walls were adequate to prevent the flow of inside information from the private side to the public side. 11 The proceedings arise out of the purchase by a public side employee of over one million shares in Patrick Corporation Limited ('Patrick') at a time when private side employees working in the IBD were acting for Citigroup's client, Toll, on a proposed takeover bid for Patrick. The shares were purchased by a trader, Mr Andrew Manchee, who worked on the proprietary trading desk which is situated in Equity Derivatives, within the Equities Division. 321 A reminder that Chinese walls may sometimes be porous is to be found in the recent decision of Bergin J in Asia Pacific v Optus. 322 The authorities to which I have referred above at [276] [281] make it clear that the question of whether any fiduciary relationship existed between Citigroup and Toll is to be determined by the proper construction of the mandate letter.
Case: Australian Breeders Co-operative Society Limited v Jones (1997) 150 ALR 488
Outcome: distinguished
The subject matter over which any fiduciary obligations will extend must be determined by the character of the venture or undertaking: see Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384 at 408 per Dixon J; United Dominions v Brian at 13 per Mason, Brennan and Deane JJ; News Limited at 539 per Lockhart, von Doussa and Sackville JJ. This is to be ascertained from the terms of the agreement and the course of dealing between the parties: see News Limited at 539 per Lockhart, von Doussa and Sackville JJ; Australian Breeders Co-operative Society Limited v Jones (1997) 150 ALR 488 at 514 per Wilcox and Lindgren JJ; Beach Petroleum NL v Kennedy [1999] NSWCA 408 ; (1999) 48 NSWLR 1 at [194] per Spigelman CJ, Sheller JA and Stein JA.
Case: Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384
Outcome: referred to
The subject matter over which any fiduciary obligations will extend must be determined by the character of the venture or undertaking: see Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384 at 408 per Dixon J; United Dominions v Brian at 13 per Mason, Brennan and Deane JJ; News Limited at 539 per Lockhart, von Doussa and Sackville JJ. This is to be ascertained from the terms of the agreement and the course of dealing between the parties: see News Limited at 539 per Lockhart, von Doussa and Sackville JJ; Australian Breeders Co-operative Society Limited v Jones (1997) 150 ALR 488 at 514 per Wilcox and Lindgren JJ; Beach Petroleum NL v Kennedy [1999] NSWCA 408 ; (1999) 48 NSWLR 1 at [194] per Spigelman CJ, Sheller JA and Stein JA.
Case: Boughey v The Queen [1986] HCA 29 ; (1986) 161 CLR 10
Outcome: referred to
Citigroup's advice was given to Toll which was a person who was, or was "likely to become, an interested party" in Patrick: see Reg 7.1.29(3)(c)(i). In my view, in this context "likely" means a real and not remote chance: see for example Global Sportsman Pty Limited v Mirror Newspapers (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ; Boughey v The Queen [1986] HCA 29 ; (1986) 161 CLR 10 at 21 per Mason, Wilson and Deane JJ. It seems to me that Toll's past record of success in takeover bids, its core competence in the field, and the planning and effort which went into this bid made it likely, even as at 8 August 2005, that Toll would become an interested party within the meaning stated in the authorities.
Case: Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606
Outcome: cited
As Lord Upjohn said in Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606 at 637-638, there must be a "real conflict of duty and interest and not some theoretical or rhetorical conflict". 393 The fourth conflict, as pleaded at [79] [88] of the Further Amended Statement of Claim, is that it was in the interests of Toll that the price of Patrick shares not go up during trading on 19 August 2005. 394 By placing itself in this position of conflict, Citigroup is said to have breached its fiduciary duty to Toll. The claim fails because of the absence of a fiduciary relationship but I will deal with the other elements of the claim contained in the pleading.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
The standard of proof of the claim is the balance of probabilities but I must take into account the gravity of the matters alleged: see s 140(2)(c) of the Evidence Act . This would appear to correspond with common law principles so that the well known test stated in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 applies: see Heydon JD, Cross on Evidence (7 th ed, LexisNexis Butterworths, 2004) at [9130]; cf Odgers S, Uniform Evidence Law (7 th ed, LawBook Co, 2006) at [1.4.100]. 469 As stated above, Mr Manchee was one of five traders on the proprietary trading desk; he reported to Mr Darwell; his daily trading limit was AUD$10 million: see [53] [54] above. 470 Mr Manchee's evidence was that his trading style was to look at chart patterns and relative performance of stocks to look for trading ideas. I accept his evidence on this matter.
Case: Bristol and West Building Society v Mothew [1998] Ch 1
Outcome: cited
The distinguishing or over-riding duty of a fiduciary is the obligation of undivided loyalty: see Gibson Motorsport Merchandise Pty Limited v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at [11] per Finn J; Beach Petroleum at [201] per Spigelman CJ, Sheller JA and Stein JA; Bristol and West Building Society v Mothew [1998] Ch 1 at 18 per Millett LJ. 292 The nature of the fiduciary obligation is encapsulated in the following remarks of Millett LJ in Bristol and West Building Society v Mothew at 18: "The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977), p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary."
Case: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178
Outcome: cited
That view is supported by both Australian and English authority: see Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 196 per Deane J; News Limited at 539 per Lockhart, von Doussa and Sackville JJ; Noranda Australia Limited v Lachlan Resources NL (1988) 14 NSWLR 1 at 17 per Bryson J; Woolworths Limited v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA; Kelly v Cooper [1993] AC 205 at 213-214 per Lord Browne-Wilkinson. See also Henderson v Merrett Syndicates Limited [1994] UKHL 5 ; [1995] 2 AC 145 at 206 per Lord Browne-Wilkinson. 291 This duty embodies "the twin themes" of preventing undisclosed conflict of duty and interest (or of duty and duty), and of prohibiting misuse of the fiduciary position: see Chan v Zacharia at 198-199 per Deane J; Gibson Motorsport at [12] per Finn J. 323 In Chan v Zacharia , Deane J said in plain terms at 196 that the parties to a partnership agreement could provide "that any fiduciary relationship between the partners was excluded." The observations of Mahoney JA in Woolworths v Kelly at [225] were to the same effect. His Honour said that fiduciary duties could be "varied or released" by contract. Also, in News Limited , a Full Court of this Court (Lockhart, von Doussa and Sackville JJ) said at 539 that whether there are any fiduciary obligations at all may depend on the terms of the contract.