mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1
Outcome: cited
It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357.
Case: Spotless Group Ltd v Premier Building &amp; Consulting Pty Ltd [2006] VSCA 201
Outcome: cited
The High Court looked at an aspect of waiver of legal professional privilege in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. The test applied there was whether there was " conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] . The High Court has not looked directly at the immediate question now in issue. And decisions of trial and intermediate courts both pre and post Mann v Carnell have looked at the question but have not spoken with one voice. On the one hand, there is a body of authority supporting the proposition that " statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege ": Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [15] (citing Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337; State Bank of South Australia v Smoothdale Ltd (No 2) (1995) 64 SASR 224; Akins v Abigroup Ltd (1998) 43 NSWLR 539; Sevic v Roarty [1998] NSWSC 462 ; (1998) 44 NSWLR 287); Spotless Group Ltd v Premier Building &amp; Consulting Pty Ltd [2006] VSCA 201 ; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1196 ; Polyaire Pty Ltd v K-Aire Pty Ltd (2003) 226 LSJS 109 and ACCC v Telstra Corp Ltd [2000] FCA 28 ; (2000) 96 FCR 317. 38 Instead, I understand Propend to say that a copy of a privileged document will also be privileged unless the privilege has been expressly or impliedly waived (although it may be that allowing a copy to be made in certain circumstances is capable of being conduct constituting such a waiver, such as when a copy is made and communicated to a third party for purposes not related to legal advice or litigation): cf Spotless Group Ltd v Premier Building Pty Ltd [2006] VSCA 201 at [60] - [66] (noting that Propend left the issue open but concluding that whether a copy of a privileged document is privileged is distinct from whether privilege has been waived). As such, Cadbury's argument, notwithstanding the way in which counsel sought to frame it, may be reduced to two questions: (1) are the documents privileged; and (2) has privilege been waived?
Case: State of New South Wales v Jackson [2007] NSWCA 279
Outcome: cited
With respect to litigation privilege, on the other hand, the analysis is not so simple. It is clear that the privilege applies only to documents or communications if they are made or prepared (1) in anticipation of litigation (or during pending litigation) and (2) for the purpose of the litigation (eg, with a view to obtaining legal advice or evidence for use in the litigation): Leighton [2007] WASCA 151 at [12] . (That the documents in question here were all prepared at a time when litigation was anticipated or on foot was common ground.) A lawyer-client relationship is not required: Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357. However, in contrast to the settled confidentiality requirement of the advice privilege, the authorities are divided as to whether litigation privilege may attach to communications (or documents summarizing communications) between a third-party, independent witness and a client even where they are not confidential: State of New South Wales v Jackson [2007] NSWCA 179 at [37] ( "There is some controversy over the need for confidentiality in litigation privilege at common law, and the controversy is particularly material to privilege for communications between client and third party" ); Leighton [2007] WASCA 151 at [21] - [30] (collecting and summarizing the conflicting authorities). The picture becomes even more complicated if one makes a further distinction, as some authorities do, based on whether such witness statements are found in the hands of the witness or in the hands of the lawyer: A Ligertwood, Australian Evidence (4 th ed) at 291-92, quoted in Leighton [2007] WASCA 151 at [26] .
Case: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445
Outcome: cited
To put the proposition in different terms, if " it is in the other side's power to destroy the privilege entirely ," (see [15] above) it can no longer be said that the original holder can reasonably expect any continued confidentiality. In such circumstances, the existence of the privilege cannot be made to turn on whether the other side in fact places the document into evidence or uses it for examination - either legal privilege exists or it does not, and either the client controls it or they do not: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [21] ( "If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute." ) In other words, once it is found that the original holder of the privilege cannot control further dissemination of the document, the privilege is destroyed as a matter of law without further inquiry into whether the communication was in fact disseminated.
Case: Trade Practices Commission v Sterling (1979) 36 FLR 244
Outcome: followed
In Trade Practices Commission v Sterling (1979) 36 FLR 244, 246, Lockhart J described the litigation privilege rule as follows: Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See also ACCC v FFE Building Services [2003] ATPR 41-967 at [24]-[33]; Leighton [2007] WASCA 151 at [12] ; Pratt Holdings [2004] FCAFC 122 ; (2004) 136 FCR 357 at [1] , [89] and [96].
Case: Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47
Outcome: cited
It is sufficient for present purposes to begin by stating that in order to maintain a claim of legal professional privilege, a proponent must demonstrate the communication is protected by "advice privilege" or "litigation privilege." The relationship between the two types of legal professional privilege is just one of the matters that is unclear in Australian privilege law. Some cases support the proposition that "litigation privilege is a separate category of legal professional privilege ": Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [18] ; See also R v King [2007] 2 NZLR 137; Westgold Resources NL v St Barbara Mines Ltd [2007] WASC 47 ; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332; Southern Equities Corporation Ltd v West Australian Government Holdings Ltd (1993) 10 WAR 1 and Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. On the other hand, it is also true that the " High Court has yet to make clear whether litigation privilege has an existence and rationale distinct from the advice privilege ": eg, Leighton [2007] WASCA 151 at [20] ; AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2006) 67 NSWLR 91; Westpac Banking Corporation v 789Ten Pty Ltd (2005) 55 ACSR 519 and Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357.
Case: Cassegrain v CTK Engineering [2008] NSWSC 457
Outcome: cited
That process relevantly commenced with the making of an order for the payment of costs by the Supreme Court and the subsequent issue by a costs assessor of a certificate pursuant to s 368(1) of the Legal Profession Act . Section 372 of that Act provides for the finality of such determinations as follows: Determination to be final A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division. Provision is made for the review of determinations made (ss 373 383) and for an appeal against a decision of a costs assessor " as to a matter of law " (s 384. See: O'Brien v Doherty [2008] NSWSC 205 ; Cassegrain v CTK Engineering [2008] NSWSC 457).
Case: Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Clark v UDC Finance Ltd [1985] 2 NZLR 636
Outcome: followed
Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.
Case: Dekkan v Evans [2008] FCA 1004
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 , 239 ALR 330
Outcome: followed
The Application was filed in this Court on 29 February 2008. That Application seeks an order setting aside the Bankruptcy Notice . The power of this Court to set aside a bankruptcy notice was not questioned: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83 per Lockhart J; Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 at [25] , [2007] FCA 308 ; 239 ALR 330 at 337 per Ryan J.
Case: Guss v Johnstone [2000] HCA 26 , 171 ALR 598
Outcome: followed
To " satisfy " the Court it is not necessary for the debtor to prove, as on a final hearing, the asserted entitlement to recover as against the creditor. That which is to be established is whether the Court is " satisfied " that the debtor " has a claim deserving to be finally determined ": Re Glew; Glew v Harrowell [2003] FCA 373 at [11] , [2003] FCA 373 ; 198 ALR 331 at 334. Lindgren J there observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: &#8226; that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case... &#8226; that they have "a fair chance of success" or are "fairly entitled to litigate" the claim... and &#8226; that they are advancing a "genuine" or "bona fide" claim... It may be that the first and second formulations are intended to cover the same ground. In [Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a "prima facie case" ... as a reference to "a fair chance of success". This was subsequently characterised by His Honour as a " relatively low threshold ": at [64]. The judgment to be made " involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim ": Guss v Johnstone [2000] HCA 26 at [40] , [2000] HCA 26 ; 171 ALR 598 at 606 per Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ.
Case: Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795
Outcome: followed
Whether a claim " could not have been set up " is thus to be determined by reference to legal considerations and not by reference to " practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. These comments have since been approved by the Full Court: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ. See also: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J. In Re Ling , Hill J concluded that a claim could be set up in the Federal Court as against the Commonwealth even though to do so the judgment debtor would have had to have commenced proceedings in the High Court of Australia and to have had those proceedings remitted to the Federal Court. The fact that such a " tortuous route " had to be followed did not mean that the proceeding could not have been set up in the Federal Court. His Honour reviewed some of the authorities and concluded (at 137): These cases, it seems to me, establish that a cross-claim will be one which could be set up in the action, notwithstanding that to do so the debtor may need to transfer the proceedings first to another court, or may need to obtain in his or her favour the exercise of a discretion before doing so. The onus of showing that the claim is not one that could have been set up in the creditor's proceedings lies upon the debtor. That onus will not be satisfied merely by showing that some indirect course may need be followed (that course being in the discretion of the debtor) nor by showing that there existed a discretion which could have been exercised against the setting up of the claim as a cross-claim. To satisfy that onus the debtor must show that, as a matter of law and in the circumstances prevailing, he or she could not have set up the cross-claim. That the debtor has not done in the present case. In Nath v Clipway Pty Ltd [1999] FCA 625 at [4] Spender J agreed with these observations of Hill J. Kiefel and Hely JJ agreed with Spender J. See also: Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795 at [9] [10] per Branson J.
Case: Muriniti v Lyons [2004] NSWSC 135
Outcome: followed
When making a determination, it is no part of the function of a costs assessor to entertain cross-claims which may be brought or to determine whether or when costs are payable: Muriniti v Lyons [2004] NSWSC 135. Albeit addressing the provisions in the Legal Profession Act 1987 (NSW), Dunford J there observed: [56] Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word "assessor", I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that costs are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s 208A which they must, and in s 208B which they may, take into account are all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by cross-examination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters. [57] For similar reasons it has been held that a Costs Assessor has no power to hear a cross-claim by a client against a solicitor based on negligence, nor to award damages: Ryan v Hansen, supra per Kirby J; or to make an assessment when no costs are presently due and payable: Lace v Younan [1999] NSWSC 1072 per Master Harrison (no bill of costs rendered); Baker v Kearney [2002] NSWSC 746 per Master Malpass (judgment in District Court that applicant for assessment not entitled to costs). I am therefore satisfied that on being notified of the dispute as to the plaintiff's liability to pay the costs, the Costs Assessor should have declined to make a determination or issued a certificate unless and until such issue was resolved. Nothing said by the Court of Appeal in Wentworth v Rogers [2006] NSWCA 145 , 66 NSWLR 474 detracts from this particular conclusion of Dunford J. See also: Ryan v Hansen [2000] NSWSC 354 , 49 NSWLR 184. The same observations may be made in respect to the 2004 legislation.