mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZEEU v MIMIA [2006] FCAFC 2
Outcome: cited
In considering the Tribunal's decision in light of the claims made by the appellant, Nicholls FM found that the letter of 15 January 2005 from the President of Jatiya Party was provided by the appellant for the purpose of the review and falls within the exception of s 424A(3)(b) of the Act . It was the appellant's lack of credibility which made the Tribunal unable to give weight to the document, as distinct from information about the prevalence of document fraud in Bangladesh. Findings in respect of the credibility of the appellant were matters for the Tribunal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423. However, even if the Tribunal had relied on the prevalence of document fraud in Bangladesh it would fall within the exception of s 424A(3)(a) of the Act . His Honour found that there was no statutory obligation of the Tribunal to provide an opportunity to the applicant to comment on the these adverse findings of the Tribunal, as such adverse findings are not "information" for the purposes of s 424A ( SZEEU v MIMIA [2006] FCAFC 2 at [20] , [28]). 13 In relation to the claims of a denial of procedural fairness at common law, Nicholls FM noted that the Tribunal in its decision said it had alerted the applicant to country information as to the prevalence of document fraud in Bangladesh. Similarly, the Tribunal had drawn attention to the fact that it could give not weight to the documents because of the adverse view it had taken of the appellant's credibility. In the absence of evidence provided by the applicant, the Court was unable to accept a submission of the applicant challenging these statements of the Tribunal. 14 In response to the claims of the appellant at the hearing that he was a politician, not a dentist, and that he was denied another hearing to prove this, Nicholls FM found that the applicant's request for another hearing was in response to the letter of the Tribunal and must be seen in that context. The Tribunal complied with its statutory obligations under s 425 of the Act . To the extent that natural justice in the context of Tribunal hearings is addressed exhaustively in Div 4 of Pt 7 of the Act , any complaint of a denial of natural justice at common law could not succeed. However even if s 422B did not operate, the Federal Magistrate asserted such a claim still would not succeed in these circumstances.
Case: Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389
Outcome: followed
This approach is consistent with that expressed by Mansfield J in Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389 at [38] , [40]. 91 Accepting therefore that the exercise of the power is confined to the purpose stated by Deane J, the question then is whether it follows from the concessions made by Mr Pearson that the Notice was issued other than for the administrative function of determining whether proceedings should be instituted. 92 It is true that Mr Pearson accepted that the information sought by the Notice does not go to establishing any element of a breach of the provisions of s 45(2)(a) or (b) of the Act. But, in my opinion, it does not follow that the decision to issue and serve the Notice was for an improper purpose. There are two reasons for this. 102 Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan . Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. 119 The short answer to KAL's submission is that the evidence before me demonstrates that the purpose of the ACCC in deciding to issue the Notice was to obtain evidence of the extent of any contraventions by KAL and evidence going to the quantum of any penalty. All of this might ultimately be used in the event that the ACCC decides to commence proceedings. This purpose falls "squarely within the Act": Rural Press at [40]. 120 Reference was made in cross-examination of Mr Pearson to the ACCC's knowledge of difficulties encountered in obtaining an order for discovery and interrogatories in existing proceedings. It has not been demonstrated that this was an actuating purpose in the decision to serve the Notice. 121 The application will be dismissed. I will hear the parties briefly on the question of costs. I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 15 May 2008 Counsel for the Applicant: S Gageler SC with M Darke Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: A Robertson SC, T Howe QC and R A Dick Solicitor for the Respondent: Australian Government Solicitor Date of hearing: 7 April 2008 Date of Judgment: 15 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/701.html
Case: Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 
Outcome: referred to
In Brown v Commissioner of Taxation at [184] [185], Emmett J considered that s 131(2)(g) will apply where the Court would be likely to be misled as to the existence or contents of an excluded communication where those matters are in issue in the proceedings: see also Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [7] .
Case: Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 
Outcome: discussed
Nor, in my view, does the statement of Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 at 189 support the view that the power automatically ceases when the proceedings have been commenced. 104 It seems to me that the effect of what Franki J said was captured in the words of Gibbs CJ in Pioneer Concrete at 467-468. Thus, if the power were used to assist a party in proceedings already pending, in a way that would confer an advantage which the procedures of the Court would otherwise deny, there would be a contempt; however, not every investigation into facts the subject of an existing proceeding constitutes a contempt. 105 In any event, whether or not the question of law is decided favourably to KAL, the contention fails at the factual level because I am not satisfied that the ACCC had decided to commence proceedings. 106 Ultimately, Mr Gageler conceded that there was no decision by the ACCC to commence proceedings and he accepted that there was no recommendation to the ACCC that proceedings be commenced. However, he adhered to the submission that, as at 31 October 2007, there had for some time been a very firm intention, contemplation or expectation that proceedings would be commenced subject only to the ACCC being satisfied of the sufficiency of evidence of a contravention of s 45.
Case: Brown v Commissioner of Taxation (2001) 187 ALR 714 
Outcome: followed
It is implicit in the remarks of Emmett J in Brown v Commissioner of Taxation (2001) 187 ALR 714 at [172] [174] that the same position applies under s 131 of the Evidence Act . 78 In Brown v Commissioner of Taxation at [184] [185], Emmett J considered that s 131(2)(g) will apply where the Court would be likely to be misled as to the existence or contents of an excluded communication where those matters are in issue in the proceedings: see also Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [7] .
Case: Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
Outcome: referred to
In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11.
Case: Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477 
Outcome: referred to
The decision of the Full Court in Pioneer Concrete was upheld on appeal to the High Court: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. Mason J at 474 agreed with the analysis of Deane J in the Full Court of the Federal Court. See also Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477 at 516-517 (note 62) per Brennan J.
Case: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 
Outcome: referred to
I do not consider that this confines the nature of the dispute to one which is the subject of existing proceedings. To do so would be contrary to the rationale for the existence of the privilege which is to enable parties to engage in negotiations aimed at the settlement of litigation: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 at 291-292; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [27]. 72 The statutory requirement that the communication be "in connection with an attempt to negotiate a settlement" reflects the language used by the High Court in Field at 293. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations.
Case: First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266 
Outcome: followed
Nor is there any substance in the suggestion that the privilege does not apply because the "dispute" concerning the air cargo investigation is different from the dispute which is the subject matter of these proceedings: First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266 at [33] [34].
Case: Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 
Outcome: referred to
I do not consider that this confines the nature of the dispute to one which is the subject of existing proceedings. To do so would be contrary to the rationale for the existence of the privilege which is to enable parties to engage in negotiations aimed at the settlement of litigation: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 at 291-292; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [27]. 68 The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] [29].
Case: GPI Leisure Corporation Ltd (In Liq) v Yuill (1997) 42 NSWLR 225 
Outcome: applied
The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd (In Liq) v Yuill (1997) 42 NSWLR 225 at 226. 75 Mr Owbridge's proposal to Mr Lloyd fell within this description. 76 Two requirements must be satisfied for an otherwise privileged communication to fall within the exception stated in s 131(2)(g). First, other evidence must have already been adduced which would be likely to mislead the court unless evidence of the without prejudice communication is adduced.
Case: Harrington v Lowe (1996) 190 CLR 311 
Outcome: referred to
The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] [29].
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: referred to
Nor do I consider that the principle in Jones v Dunkel (1959) 101 CLR 298 is enlivened by the failure of the ACCC to call Mr Samuel or the members of staff who prepared the Reason to Believe paper. There are limits on the use which can be made of Jones v Dunkel in administrative law proceedings. This is not a case in which the inferences sought to be drawn by KAL would be hard to resist in the absence of evidence from the author of the documents: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [92] , [143], [316] [317] and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . 117 KAL relied on a number of matters to support an inference that the purpose for which the Notice was issued was an improper one, namely that the ACCC believed it may not be able to obtain the information through the Court's processes once it had commenced proceedings.
Case: Moran v Moran (No 3) [2000] NSWSC 151 
Outcome: distinguished
KAL submitted that the evidence of the conversation was admissible under s 131(2)(g) because, without it, I would have only part of the picture in respect of an important aspect of KAL's case: Moran v Moran (No 3) [2000] NSWSC 151 at [13] . However, in my view, that is not the whole of the test which is stated in s 131(2)(g) and, ultimately, 84 The high watermark of KAL's attack on the validity of the Notice is to be found in the concessions which Mr Gageler obtained from Mr Pearson and to which I referred in the introduction. The essential point which arises is whether, in light of Mr Pearson's concession that the information sought in the Notice is not required to establish a contravention of s 45(2)(a) or (b), it can nevertheless be said that the power was exercised for the purpose for which it was conferred. 85 The answer to this question turns upon a consideration of the authorities on the ambit of the power and upon Mr Pearson's other evidence.
Case: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 
Outcome: referred to
In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11.
Case: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460
Outcome: referred to
The decision of the Full Court in Pioneer Concrete was upheld on appeal to the High Court: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. Mason J at 474 agreed with the analysis of Deane J in the Full Court of the Federal Court. See also Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477 at 516-517 (note 62) per Brennan J.
Case: Riley McKay Pty Limited v Bannerman [1977] FCA 7 ; (1977) 15 ALR 561
Outcome: referred to
Earlier, in Riley McKay Pty Limited v Bannerman [1977] FCA 7 ; (1977) 15 ALR 561 at 566, Bowen CJ said that the power must be exercised for the purposes for which it is given and not otherwise; that is, to assist the Commission in the exercise of its functions. Bowen CJ reiterated that view in Pioneer Concrete at 84. Sheppard J agreed with both the Chief Justice and Deane J.
Case: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608
Outcome: referred to
The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] [29].
Case: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 
Outcome: followed
Here, it is sufficiently clear from the terms of the conversation between Mr Owbridge and Mr Lloyd and the background which I have recounted that there was a likelihood of litigation if the settlement proposal was not accepted. In my view, that was sufficient to constitute a "dispute" for the purposes of s 131(1)(a) and s 131(5)(a) of the Evidence Act : Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 at 73-74. 73 The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Trade Practices Commission v Arnotts at 72-73.
Case: Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1982) 55 FLR 77
Outcome: discussed
KAL therefore submitted that the purpose for which the Notice was issued exceeded the limits of the power to issue a Notice under s 155. The clearest statement of the principle which underlies KAL's attack on the decision to issue the Notice is to be found in the words of Deane J in Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1982) 55 FLR 77 at 95. 11 In the relevant passage from Deane J's judgment, his Honour said that the power conferred under s 155 is to be used only for the purpose: ...of the performance by the Commission of the administrative function of determining whether proceedings should be instituted by the Commission... 12 KAL contends that this principle is infringed so as to enliven the grounds of review stated in ss 5(1)(d), 5(1)(e) and 5(2)(c) of the ADJR Act . 13 However, this contention must of course be looked at in light of the evidence as a whole, including in particular other evidence given by Mr Pearson as to the circumstances which existed at the time when the decision to issue the Notice was made. 86 A consideration of the authorities supports the view of Deane J in the Full Federal Court of the Federal Court in Pioneer Concrete that the power is to be used only for the performance of the administrative function of determining whether proceedings should be instituted.
Case: Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 
Outcome: referred to
Other decisions of the Full Court of the Federal Court are to the same effect as the statement of principle of Deane J in Pioneer Concrete: see Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 at 514 per Davies and Foster JJ; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 at [48] per Sackville and Emmett JJ.
Case: Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122
Outcome: distinguished
I do not consider that the decision of a Full Court in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [84] assists KAL. Lander J at [84], with whom Moore J at [1] and Weinberg J at [23] agreed, accepted that a distinction is to be drawn between the power to commence proceedings which is only exercisable by the Commissioners, and contemplation of litigation by ACCC staff for the purpose of determining a claim for legal professional privilege.
Case: NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17
Outcome: applied
judgment of the Federal Magistrate refusing reinstatement is not attended by sufficient doubt to warrant its being reconsidered. It is supported by Full Court authority in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [24] where their Honours held that the certificate in question did not identify a medical condition or explain why it would prevent the applicant from appearing in Court. No substantive injustice would arise if leave were refused as the Court below carefully considered the merits of the applicant's substantive application and persuasively reasoned that it had no merit. The applicant's challenge to the Tribunal's decision essentially concerned questions of fact rather than the identification of judicially reviewable errors. His Honour correctly found that there was no arguable case for judicial review. The application for leave to appeal is dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 18 May 2009 The Appellant appeared for himself. Counsel for the Respondents: Mr B Wee Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 18 May 2009 Date of Judgment: 18 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/506.html
Case: Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1
Outcome: cited
I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities
Case: Briglia v Commissioner of Taxation (2000) 44 ATR 166
Outcome: cited
I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities
Case: Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371
Outcome: cited
I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities