mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: National Crime Authority v S (1991) 29 FCR 203 at 211
Outcome: referred to
Now that the test for legal professional privilege is 'dominant purpose' rather than 'sole purpose', there may well be many more cases where, upon the hearing of a disputed claim, there will be occasion for a deponent who has verified a list of documents claiming privilege to be cross-examined. Indeed, it would seem, from a procedural point of view, that if production of a document for which privilege has been claimed is sought, it would be incumbent upon the party claiming the privilege to at least read the affidavit verifying the list and thereby expose the deponent to cross-examination (see National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557 at 561 and Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'
Case: Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557
Outcome: referred to
Now that the test for legal professional privilege is 'dominant purpose' rather than 'sole purpose', there may well be many more cases where, upon the hearing of a disputed claim, there will be occasion for a deponent who has verified a list of documents claiming privilege to be cross-examined. Indeed, it would seem, from a procedural point of view, that if production of a document for which privilege has been claimed is sought, it would be incumbent upon the party claiming the privilege to at least read the affidavit verifying the list and thereby expose the deponent to cross-examination (see National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557 at 561 and Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462).
Case: Re Compass Airlines Pty Ltd (1992) 35 FCR 447
Outcome: referred to
Now that the test for legal professional privilege is 'dominant purpose' rather than 'sole purpose', there may well be many more cases where, upon the hearing of a disputed claim, there will be occasion for a deponent who has verified a list of documents claiming privilege to be cross-examined. Indeed, it would seem, from a procedural point of view, that if production of a document for which privilege has been claimed is sought, it would be incumbent upon the party claiming the privilege to at least read the affidavit verifying the list and thereby expose the deponent to cross-examination (see National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557 at 561 and Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462).
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: referred to
It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence (per Stephen, Mason (as his Honour then was) and Murphy JJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; see also per Gleeson CJ, Gaudron and Gummow JJ in Esso at [52]). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'
Case: Barnes v Commissioner of Taxation [2007] FCAFC 88
Outcome: referred to
The relevant time at which a claim for privilege is to be determined is the time when the document came into existence. The relevant question is whether the document came into existence for the dominant purpose of seeking legal advice or assistance. If the document satisfies that description, then it is privileged from production (per Tamberlin, Stone and Siopis JJ in Barnes v Commissioner of Taxation [2007] FCAFC 88 ('Barnes') at [5]). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'
Case: Seven Network Limited v News Limited [2005] FCA 142
Outcome: referred to
In Seven Network Limited v News Limited [2005] FCA 142 at [4] Tamberlin J said in respect of legal professional privilege: '4. The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues. 5. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. ...' (See also Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 ('Waterford') at 62, 70-71 and 81-82). 31 In respect of the application before his Honour, Tamberlin J said at [38]: '... I am cognisant of the fact that there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. In other words, it is often practically impossible to segregate commercial activities from purely "legal" functions. The two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement. ...' 32 In that case, his Honour proceeded to say in respect of Mr Philip, the chief general counsel for News Limited, at [38]: '... In the present case, however, I am persuaded that Mr Philip was actively engaged in the commercial decisions to such an extent that significant weight must be given to this participation. In many circumstances where in-house counsel are employed there will be considerable overlap between commercial participation and legal functions and opinions. As can be seen from the specific rulings below, I am not persuaded that in this proceeding Mr Philip was acting in a legal context or role in relation to a number of the documents in respect of which privilege was claimed. Nor am I persuaded that the privilege claims were based on an independent and impartial legal appraisal.'
Case: Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: referred to
In Seven Network Limited v News Limited [2005] FCA 142 at [4] Tamberlin J said in respect of legal professional privilege: '4. The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues. 5. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. ...' (See also Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 ('Waterford') at 62, 70-71 and 81-82). 33 In Waterford the court accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances, only the legal advice will be privileged. However, if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason (per Mason (as his Honour then was) and Wilson JJ at 66 and per Dawson J at 103).
Case: DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 ; (2003) 135 FCR 151
Outcome: referred to
Legal professional privilege is not limited to express advice about the law. Too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege (per Allsop J in DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 ; (2003) 135 FCR 151 at [52] . 35 In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied. 36 In the case presently before the Court, there is no evidence, as I have earlier remarked, going to the independence of the internal legal advisers involved in the communications said to have been brought into existence for the dominant purpose of providing or receiving legal advice. There is nothing to indicate from the description of the six documents with which the Court is presently concerned that they must be documents for which privilege is properly claimed. Different considerations may apply if, say, the documents in question were opinions expressed by identified senior counsel where one might start off with the premise that by its nature the document would have privilege attaching to it. This is not such a case.
Case: Benecke v National Australia Bank (1993) 35 NSWLR 110
Outcome: referred to
As I have said, it is unnecessary for me to reach any concluded view in relation to this aspect of the matter. It is not inappropriate, however, to refer to the observations of Gleeson CJ, then sitting as the Chief Justice of New South Wales, in Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111; see also Commissioner of Taxation v Rio Tinto Ltd at [49] and [61].
Case: Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83
Outcome: cited
The Tribunal was required to assess the evidence before it for itself and " form a view about necessary facts, determine what the facts [were] and then by reference to those ascertained facts determine whether the decision of [the Trustee and the Insurer] was fair and reasonable in the circumstances" : Marks at [23]. See also Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at [87] - [89] per Kirby J.
Case: Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122
Outcome: cited
Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: referred to
The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 43 Mr Samaras also sought to challenge the TPD test applied by the Trustee. He asserted that the Tribunal misapplied the test when it affirmed the decision of the Trustee. That complaint is, in my view, to be rejected for at least two reasons. First, it ignores the fact that the Tribunal properly described and applied the test as outlined in [41] above. Secondly, Mr Samaras misunderstood the Tribunal's reasons for decision and, in particular, sought to take one sentence of the reasons out of context. The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Pozzolanic at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Although the Tribunal did refer to the fact that the Trustee advised Mr Samaras that his TPD claim had been declined " on the basis that the overall medical evidence [did] not indicate that [he] would be unable to return to the employment for which [he was] fitted by education, training and experience " and that there was no evidence of substantial and irrecoverable pathology, the Tribunal did so in the context of refuting an allegation that there was no evidence to support the claim that the Trustee had failed to make its own assessment about whether Mr Samaras was TPD as defined. It is neither appropriate nor possible to read the Tribunal's reasons for decision in the manner suggested by Mr Samaras.
Case: Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170
Outcome: cited
It was common ground for the purposes of this appeal that: (1) the Tribunal was not required or indeed permitted to determine whether the Trustee's decision was the correct or preferable one or whether Mr Samaras, in its opinion, suffered disablement that came within the Policy or the Deed; and (2) the relevant time for the Tribunal to consider Mr Samaras' claim for TPD benefit was the date of the decision of the Trustee: see s 37 of the SCT Act and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170 at [15] . In the present case, that date was 9 August 2005.
Case: Marks v CSS Board of Trustees [2005] FCA 797
Outcome: cited
Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797. 20 The Tribunal was required to assess the evidence before it for itself and " form a view about necessary facts, determine what the facts [were] and then by reference to those ascertained facts determine whether the decision of [the Trustee and the Insurer] was fair and reasonable in the circumstances" : Marks at [23]. See also Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at [87] - [89] per Kirby J.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 43 Mr Samaras also sought to challenge the TPD test applied by the Trustee. He asserted that the Tribunal misapplied the test when it affirmed the decision of the Trustee. That complaint is, in my view, to be rejected for at least two reasons. First, it ignores the fact that the Tribunal properly described and applied the test as outlined in [41] above. Secondly, Mr Samaras misunderstood the Tribunal's reasons for decision and, in particular, sought to take one sentence of the reasons out of context. The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Pozzolanic at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Although the Tribunal did refer to the fact that the Trustee advised Mr Samaras that his TPD claim had been declined " on the basis that the overall medical evidence [did] not indicate that [he] would be unable to return to the employment for which [he was] fitted by education, training and experience " and that there was no evidence of substantial and irrecoverable pathology, the Tribunal did so in the context of refuting an allegation that there was no evidence to support the claim that the Trustee had failed to make its own assessment about whether Mr Samaras was TPD as defined. It is neither appropriate nor possible to read the Tribunal's reasons for decision in the manner suggested by Mr Samaras.
Case: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562
Outcome: cited
Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797.