mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gartner v Ernst and Young (No 3) [2003] FCA 1437
Outcome: referred to
The plaintiff's main, and indeed only, submission is that the defendant's application for security for costs should be refused because it is very unlikely, having regard to the merits of the respective claims, that the plaintiff will be ordered to pay the defendant's costs. It is clear that I cannot determine the merits of the plaintiff's claim and the defendant's set-off and counterclaim on this application. However, the plaintiff's prospects of success are relevant on an application for security for costs: Gartner v Ernst and Young (No 3) [2003] FCA 1437. In this case, it is not the defendant who is submitting that the plaintiff's claim appears weak and that this is a factor in favour of granting security. It is a plaintiff submitting that its case is so strong that security for costs should not be ordered. 12 The plaintiff claims that it carried out repairs to the ship between 29 February 2004 and 22 March 2004. The plaintiff claims that the first instalment of the agreed price, namely, the sum of US$250,000, was paid prior to the ship leaving the shipyard. The balance of the agreed price, namely, the sum of US$233,500, was to be paid by the defendant within 60 days. It was not paid, and on the plaintiff's case the benefit of a discount was therefore lost and the sum of US$308,117 became due and payable by the defendant. Little was said about that matter in the submissions before me and I will proceed on the basis that, for the purposes of this application, the plaintiff's claim is for US$233,500. 13 It seems to be common ground that, initially at least, it was a term of the repair contract that the work would be performed within a period of 22 days.
Case: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Outcome: cited
As is repeatedly emphasised, each case turns on its own facts. However, it is helpful to consider some other factual circumstances where waiver has been considered: &#8226; An Attorney-General stated that he had received an advice, considered it and then made a recommendation to the Premier. The reference by the Attorney-General to the legal advice and to the recommendation in that advice that a petition should be denied involved no inconsistency with the maintenance of privilege and involved no unfairness to the appellant. This was because, in context, the Attorney-General was seeking to give the fullest information about the process that had been followed, while not giving reasons for the decision ( Osland v Secretary to the Department of Justice [2008] HCA 37 (' Osland ') at [44]-[48] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). &#8226; A statement in response to a request for particulars that the facts, matters and circumstances taken into account by the decision-maker included certain material and was confirmed by legal advice amounted to waiver ( Rio Tinto ). &#8226; Where, in order to establish a particular right, claim or defence, a party has previously been given legal advice and needs to show that the advice did or did not have a particular character, the privilege holder puts in issue the advice received and the character or contents of the communications in which it claims confidentiality. In these circumstances, the privilege holder's conduct is inconsistent with the continued confidentiality of the communications ( Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 , disapproved in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 but not on this point, discussed in Rio Tinto at [53]-[54]). &#8226; Privilege is waived where a party relies on a cause of action, an element of which is the party's state of mind. Privilege is taken to have been waived in respect of legal advice that is material to the formation of that state of mind. On the other hand, there is no waiver if the advice only played a part in the formation of the state of mind relevant to an issue in the proceedings. ( Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 , also discussed in Rio Tinto at [55]-[58]).
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: cited
In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 , Tamberlin J observed at [6] that ' it would be inconsistent and unfair, having disclosed and used the substance of the advice ' to emphasise and promote the strength and substance of a case to be made, to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. That contrasts with a person saying that he or she has taken advice and that his or her position after considering the advice is that certain action will be taken or not taken. There, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. His Honour considered at [13] that the weight of authority supports the conclusion that ' the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed '. Gyles J said at [65] that the ' voluntary disclosure of the gist or conclusion ' of legal advice amounts to waiver of the whole advice. 16 In Osland at [44] [49], the High Court has recently considered the issue of implied waiver. The majority (Gleeson CJ, Gummow, Heydon and Kiefel JJ) confirmed that, at common law, such waiver arises where the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. Also relevant are considerations of fairness arising from the context of the circumstances of the case.
Case: Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: cited
As is repeatedly emphasised, each case turns on its own facts. However, it is helpful to consider some other factual circumstances where waiver has been considered: &#8226; An Attorney-General stated that he had received an advice, considered it and then made a recommendation to the Premier. The reference by the Attorney-General to the legal advice and to the recommendation in that advice that a petition should be denied involved no inconsistency with the maintenance of privilege and involved no unfairness to the appellant. This was because, in context, the Attorney-General was seeking to give the fullest information about the process that had been followed, while not giving reasons for the decision ( Osland v Secretary to the Department of Justice [2008] HCA 37 (' Osland ') at [44]-[48] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). &#8226; A statement in response to a request for particulars that the facts, matters and circumstances taken into account by the decision-maker included certain material and was confirmed by legal advice amounted to waiver ( Rio Tinto ). &#8226; Where, in order to establish a particular right, claim or defence, a party has previously been given legal advice and needs to show that the advice did or did not have a particular character, the privilege holder puts in issue the advice received and the character or contents of the communications in which it claims confidentiality. In these circumstances, the privilege holder's conduct is inconsistent with the continued confidentiality of the communications ( Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 , disapproved in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 but not on this point, discussed in Rio Tinto at [53]-[54]). &#8226; Privilege is waived where a party relies on a cause of action, an element of which is the party's state of mind. Privilege is taken to have been waived in respect of legal advice that is material to the formation of that state of mind. On the other hand, there is no waiver if the advice only played a part in the formation of the state of mind relevant to an issue in the proceedings. ( Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 , also discussed in Rio Tinto at [55]-[58]). 24 The Evidence Act applies to the adducing of evidence in proceedings to which the Act is applicable. It does not apply to pre-trial processes such as discovery or to the production of documents prior to the adducing of evidence ( Mann ; Esso ).
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: applied
At common law, a person who is otherwise entitled to legal professional privilege may waive the privilege. Waiver may result from inconsistency between the conduct of the client and maintenance of the confidentiality of the relevant communications ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] ). Waiver may be express or implied and may occur irrespective of the subjective intention of the party who has lost the privilege ( Mann at [29]). 19 It must be accepted that the application to amend was made with instructions from Servier. Accordingly, Servier intentionally presented Mr Hamer's affidavits and evidence as evidence of its reasons for making that application. In effect, Servier has disclosed the legal advice of Mr Hamer by presenting that advice as the totality of its reasons for seeking amendment. It is then inconsistent with that presentation to claim legal professional privilege with respect to the communications between Servier and Mr Hamer concerning Mr Hamer's opinion, Servier's instructions, the application for amendment and Servier's reasons for making it ( Mann at [34]). 20 In answer to Apotex's complaint that it is precluded from testing Servier's knowledge, Servier relies on the pleadings and says that Apotex has not advanced such a case. However, Apotex's amended statement of grounds in support of its opposition to the amendments clearly raises an allegation of Servier's failure to provide full disclosure of all matters relevant to the proposed amendments, including its reasons for seeking them, the settlement of the Lupin opposition and its reasons for not seeking the amendments earlier in Australia. 21 Further, as Apotex is entitled to challenge Servier's reasons, there is an element of unfairness in Servier proffering only Mr Hamer's reasons as its own and maintaining the confidentiality in the link between them. Apotex is deprived of the opportunity to explore Servier's reasons, for example to ascertain whether or not they are coextensive with those of Mr Hamer. 24 The Evidence Act applies to the adducing of evidence in proceedings to which the Act is applicable. It does not apply to pre-trial processes such as discovery or to the production of documents prior to the adducing of evidence ( Mann ; Esso ).
Case: Osland v Secretary to the Department of Justice [2008] HCA 37
Outcome: applied
As is repeatedly emphasised, each case turns on its own facts. However, it is helpful to consider some other factual circumstances where waiver has been considered: &#8226; An Attorney-General stated that he had received an advice, considered it and then made a recommendation to the Premier. The reference by the Attorney-General to the legal advice and to the recommendation in that advice that a petition should be denied involved no inconsistency with the maintenance of privilege and involved no unfairness to the appellant. This was because, in context, the Attorney-General was seeking to give the fullest information about the process that had been followed, while not giving reasons for the decision ( Osland v Secretary to the Department of Justice [2008] HCA 37 (' Osland ') at [44]-[48] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). &#8226; A statement in response to a request for particulars that the facts, matters and circumstances taken into account by the decision-maker included certain material and was confirmed by legal advice amounted to waiver ( Rio Tinto ). &#8226; Where, in order to establish a particular right, claim or defence, a party has previously been given legal advice and needs to show that the advice did or did not have a particular character, the privilege holder puts in issue the advice received and the character or contents of the communications in which it claims confidentiality. In these circumstances, the privilege holder's conduct is inconsistent with the continued confidentiality of the communications ( Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 , disapproved in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 but not on this point, discussed in Rio Tinto at [53]-[54]). &#8226; Privilege is waived where a party relies on a cause of action, an element of which is the party's state of mind. Privilege is taken to have been waived in respect of legal advice that is material to the formation of that state of mind. On the other hand, there is no waiver if the advice only played a part in the formation of the state of mind relevant to an issue in the proceedings. ( Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 , also discussed in Rio Tinto at [55]-[58]).
Case: Secretary, Department of Justice v Osland (2007) 95 ALD 380
Outcome: cited
Servier says that only the fact of the advice has been put in issue, not the content of that advice or the disclosure of parts of the advice. Servier says that a disclosure of the fact of and conclusions of independent advice for the purpose of explaining or justifying actions is not inconsistent with the maintenance of confidentiality of that advice ( Secretary, Department of Justice v Osland (2007) 95 ALD 380 at [67] per Maxwell P). 11 Servier submits that, in order to have waived privilege, it would have to have positively deployed the substance or effect of the advice and refused to disclose the whole of it. Servier contends that it has not done so.
Case: Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379
Outcome: cited
In Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 , the Full Court held that O 33 r 11 of the Federal Court Rules does not so operate. The Full Court concluded at [17] that the operation of O 33 r 11 of the Federal Court Rules is limited to ' circumstances in which an order is made for production of a document or thing to the Court ... at a time when the Court ... is authorised to receive evidence. That is, in circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence '. 27 The documents referred to in the notice to produce served on Servier are sought for the purpose of inspection and not for being immediately adduced in evidence. It follows that the Evidence Act has no present application to the production of documents pursuant to the notice to produce. 28 There are two outstanding issues regarding Servier's waiver of privilege: &#8226; Whether privilege has been waived by Servier in respect of all of the documents the subject of the notice to produce. Neither party addressed this question. &#8226; Whether Servier has waived privilege under s 122 of the Evidence Act . This will become relevant if, for example, any documents the subject of the notice to produce are sought to be adduced in evidence.
Case: Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Outcome: cited
As is repeatedly emphasised, each case turns on its own facts. However, it is helpful to consider some other factual circumstances where waiver has been considered: &#8226; An Attorney-General stated that he had received an advice, considered it and then made a recommendation to the Premier. The reference by the Attorney-General to the legal advice and to the recommendation in that advice that a petition should be denied involved no inconsistency with the maintenance of privilege and involved no unfairness to the appellant. This was because, in context, the Attorney-General was seeking to give the fullest information about the process that had been followed, while not giving reasons for the decision ( Osland v Secretary to the Department of Justice [2008] HCA 37 (' Osland ') at [44]-[48] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). &#8226; A statement in response to a request for particulars that the facts, matters and circumstances taken into account by the decision-maker included certain material and was confirmed by legal advice amounted to waiver ( Rio Tinto ). &#8226; Where, in order to establish a particular right, claim or defence, a party has previously been given legal advice and needs to show that the advice did or did not have a particular character, the privilege holder puts in issue the advice received and the character or contents of the communications in which it claims confidentiality. In these circumstances, the privilege holder's conduct is inconsistent with the continued confidentiality of the communications ( Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 , disapproved in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 but not on this point, discussed in Rio Tinto at [53]-[54]). &#8226; Privilege is waived where a party relies on a cause of action, an element of which is the party's state of mind. Privilege is taken to have been waived in respect of legal advice that is material to the formation of that state of mind. On the other hand, there is no waiver if the advice only played a part in the formation of the state of mind relevant to an issue in the proceedings. ( Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 , also discussed in Rio Tinto at [55]-[58]).
Case: Barina Corporation Ltd v Federal Commissioner of Taxation (1985) 4 NSWLR 96
Outcome: distinguished
The second ("the lack of marketability") contention involves some examination of case law relating to land and in particular the decisions of the High Court in Federal Commissioner of Taxation v St Hubert's Island Pty Ltd [1978] HCA 10 ; (1978) 138 CLR 210 and of Rogers J in Barina Corporation Ltd v Federal Commissioner of Taxation (1985) 4 NSWLR 96. 51 The principal authority relied upon in support of the applicant's "marketability" contention, is the decision of Rogers J in Barina Corporation Ltd v Federal Commissioner of Taxation , above. In that case, Rogers J held that, for the purposes of s 31(1) of the 1936 Act (which related to the valuing of "each article of trading stock"), proposed lots in land acquired for the purposes of subdivision but which was not at that stage subdivided could not be described as "an article of trading stock" distinct from the land in globo. That is not the issue with which I am concerned in this matter. The relevant item of trading stock is the Bulletin Place land itself. As the Landsbury report indicates and as was relied upon by the trustees in making their election, that property was capable of being valued and was itself marketable. For this reason it is unnecessary for me to consider further the Barina case. It has no bearing on this matter.
Case: ARM Constructions Pty Ltd v Federal Commissioner of Taxation (1987) 19 ATR 337
Outcome: distinguished
The final authority relied upon by the applicant ARM Constructions Pty Ltd v Federal Commissioner of Taxation (1987) 19 ATR 337 - merely illustrates that whether or not property subdivided in a joint venture will be trading stock under the 1936 Act turned on the purpose or intention of the venturers when acquiring the property. If that purpose was retention, the lots etc subdivided and constructed would not be trading stock notwithstanding that the venturers acknowledged it might be necessary to sell some to discharge indebtedness as in fact happened. It does not assist R &amp; D Holdings in this matter given my findings as to the Trust's purposes in holding Bulletin Place in the 1998 tax year. 53 Mr Richardson gave considerable evidence oral and affidavit on this matter. I should state at the outset that I have treated his evidence with considerable circumspection. I am satisfied that both his evidence and the tendered documents for which he was responsible have on occasion been contrived or framed to advance R &amp; D Holdings' interests. Accordingly I place greater reliance on the contemporary record of events (other than several clearly self-serving R &amp; D Holdings documents to which I will refer specifically below). 54 The Hallinn Trust was, according to Mr Richardson, his family trust and it was his intention in relation to properties purchased by it that "they would be held, so far as practicable, as investment (sic) for the ultimate benefit of my children". His own affidavit, though, does suggest that there are other trusts associated with his "family interests" "the Austcorp 208 Unit Trust": Aff [14]-[15]; and "the A J Richardson Family Trust": Aff [128] though the provenance and character of these trusts is unexplained.
Case: Commissioner of Taxation v Roberts (1992) 37 FCR 246
Outcome: cited
It has not been suggested that, when Chapel Road entered into the 1987 EMT loan or the 1990 MMLIC refinancing loan, its purpose was to generate transferable losses. On the evidence the purpose of the EMT loan and hence of the MMLIC loan: Commissioner of Taxation v Roberts (1992) 37 FCR 246 at 257 was to purchase and redevelop land by constructing an office block to be used to produce rental income. The money borrowed was used for that purpose.
Case: Ure v Federal Commissioner of Taxation (1981) 81 ATC 4100
Outcome: cited
There is a large body of authority to the effect that where borrowed money is laid out for the purposes of gaining assessable income this "furnishes the required connection between the interest paid upon it by the taxpayer and the income derived by [it] from its use": Ure v Federal Commissioner of Taxation (1981) 81 ATC 4100 at 4104; see generally Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153 at 170-171; Hart v Commissioner of Taxation [2002] FCAFC 222 ; (2002) 121 FCR 206 at [26] - [27] ; reversed by the High Court but not on this point: see [2004] HCA 26 ; (2004) 217 CLR 216. The interest paid is thus "incidental and relevant" to the gaining of that income for the purposes of s 51(1) and s 8-1: Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47 at 56. I would note in passing that the "incidental and relevant" formula is commonly used to describe the necessary connection between the loss or outgoing incurred and the gaining or producing of assessable income, though it has been acknowledged that the formula does not constitute "an exclusive or exhaustive test" of the scope of s 51(1) requirement: Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 497. Importantly, for present purposes, as was said by Gibbs CJ, Stephen, Mason and Wilson JJ in Commissioner of Taxation v Smith [1981] HCA 10 ; (1981) 147 CLR 578 at 586: "What is incidental and relevant ... falls to be determined not by reference to the certainty or likelihood of the outgoing resulting in the generation of income but to its nature and character, and generally to its connection with the operations which more directly gain or produce the assessable income."