mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: P &amp; V Industries Pty Ltd v Porto [2006] VSC 131 , 14 VR 1
Outcome: cited
A more generally expressed submission advanced by the Trustee that it was a part of the fiduciary duty owed by a director to make full disclosure is rejected. " The strong weight of judicial authority is that fiduciary duties are proscriptive rather than prescriptive; accordingly, a fiduciary does not have a positive duty to disclose information ": Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963 at [375] , [2007] FCA 963 ; 160 FCR 35 at 88 per Jacobson J. Reference may also be made to one of the authorities there referred to by His Honour, namely Breen v Williams [1995] HCA 63 , 186 CLR 71. Gaudron and McHugh JJ there observed (at 113): In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations -- not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed. If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country. Gummow J concluded (at 137 8): Fiduciary obligations arise (albeit perhaps not exclusively) in various situations where it may be seen that one person is under an obligation to act in the interests of another. Equitable remedies are available where the fiduciary places interest in conflict with duty or derives an unauthorised profit from abuse of duty. It would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty. See also: Pilmer v Duke Group Ltd [2001] HCA 31 at [74] (per McHugh, Gummow, Hayne and Callinan JJ) and [127] (per Kirby J), [2001] HCA 31 ; 207 CLR 165 at 197 8 and 214; P &amp; V Industries Pty Ltd v Porto [2006] VSC 131 at [12] [25], 14 VR 1 at 4 6 per Hollingworth J; Dempsey G and Greinke A, ' Proscriptive fiduciary duties in Australia ' (2004) 25 Aust Bar Rev 1.
Case: Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165
Outcome: cited
A more generally expressed submission advanced by the Trustee that it was a part of the fiduciary duty owed by a director to make full disclosure is rejected. " The strong weight of judicial authority is that fiduciary duties are proscriptive rather than prescriptive; accordingly, a fiduciary does not have a positive duty to disclose information ": Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963 at [375] , [2007] FCA 963 ; 160 FCR 35 at 88 per Jacobson J. Reference may also be made to one of the authorities there referred to by His Honour, namely Breen v Williams [1995] HCA 63 , 186 CLR 71. Gaudron and McHugh JJ there observed (at 113): In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations -- not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed. If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country. Gummow J concluded (at 137 8): Fiduciary obligations arise (albeit perhaps not exclusively) in various situations where it may be seen that one person is under an obligation to act in the interests of another. Equitable remedies are available where the fiduciary places interest in conflict with duty or derives an unauthorised profit from abuse of duty. It would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty. See also: Pilmer v Duke Group Ltd [2001] HCA 31 at [74] (per McHugh, Gummow, Hayne and Callinan JJ) and [127] (per Kirby J), [2001] HCA 31 ; 207 CLR 165 at 197 8 and 214; P &amp; V Industries Pty Ltd v Porto [2006] VSC 131 at [12] [25], 14 VR 1 at 4 6 per Hollingworth J; Dempsey G and Greinke A, ' Proscriptive fiduciary duties in Australia ' (2004) 25 Aust Bar Rev 1.
Case: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: considered
Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.
Case: Smith v Airservices Australia [2005] FCA 997 , 146 FCR 37
Outcome: applied
Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J. 99 Had the entirety of the proceeding been concluded in July 2008 by the discontinuance by the Applicants of their claim for relief, it may well have been that an order for costs, or some part of the costs that had been incurred, would have been made in favour of Mr Rickus. In Smith v Airservices Australia Stone J, for example, referred with approval to the following observations of Cooper J in Grundy v Lewis [1998] FCA 563: Although the power to award costs is unfettered, there is in the Federal Court Rules an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties ... unless the court otherwise orders (see for example O 22 r 3, O 62 r 26). This " underlying policy ", according to Her Honour, had not " hardened into a usual rule ": [2005] FCA 997 at [44] . But the " underlying policy " may well have indicated that Mr Rickus may have obtained a favourable costs order. Whether or not he was exposed to a duty or obligation to produce to the Trustee the documents or a copy of the documents he had been required to produce to the Authority, would have been an issue not requiring resolution.
Case: Talbot v NRMA Ltd [2000] NSWSC 887 , 50 NSWLR 300
Outcome: applied
In resisting the claim for production of the documents, it is further considered that at the time the demand was first made for the production of those documents, and whilst Mr Rickus remained a director, he was acting bona fide and in a manner which he reasonably considered was in the best interests of the Trustee. It was the genuineness of his belief which enabled his conduct to remain properly characterised as " acting in the capacity of an officer ". A director may be opposed to the views of his company but still act in the due performance of his office: Talbot v NRMA Ltd [2000] NSWSC 887 , 50 NSWLR 300. Hodgson CJ in Eq there observed: [24] In my opinion it is clear that it is insufficient that the director honestly believes that this action is required: the director must also be acting reasonably. That is the position in relation to trustees: Re Knox's Trust [1895] 2 Ch 483; McGregor v McGregor (No 2) [1919] NZLR 286. [25] In my opinion, in cases like these, before taking the extreme step of bringing legal proceedings against the company, a director must take into account not only the director's own view of what is in the company's interests, but also the views of others; and in that regard the director should not be too ready to attribute dishonesty or unreasonableness to other persons, and the director should take into account his or her own fallibility. The director should also take into account all the consequences of bringing proceedings against the company, including the consequences of the court decision going either way, and the costs of litigation. However, if, having done all these things, the director believes that it would be in the interests of the company that the company be subject to litigation, and that he or she would be in breach of his or her own duties as a director if the proceedings were not taken, and if those beliefs are both honest and reasonable, then it seems to me that the bringing of the proceedings should be regarded as due performance of the director's office, so that the director would be entitled to expenses and an indemnity from the company. 38 If this construction of cl 2.2 is not correct, it would be open to the Trustee to make the demand upon Mr Rickus by reason of him occupying the position of director and thereafter deny him the benefit of the indemnity by simply removing him from his position. In resisting the demand for the return of the documents, it is thus concluded that Mr Rickus was acting bona fide and that the legal costs he incurred were costs " incurred in respect of " that " Liability ". 39 Also rejected is an argument advanced by the Trustee that there was a failure on the part of Mr Rickus to give such notice as is required by cl 2.5. Notice of an intention to invoke the right to indemnity was provided by way of an exchange of correspondence from the solicitors acting for Mr Rickus to the solicitors acting for the Trustee, first by way of a letter dated 16 May 2007, and again by way of a letter dated 3 October 2007.
Case: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484
Outcome: cited
The " Liability " to accede to the demand of the Trustee is considered to be a " Liability " incurred at a time when Mr Rickus was " holding office as ... an officer of " the Trustee. In National Roads and Motorists' Assoc v Whitlam [2007] NSWCA 81 , 25 ACLC 688 Campbell JA observed in respect of a like provision: [78] The expression "as an officer" has in the present context the shade of meaning of "while acting in the role of an officer". If an officer is sued for a liability he or she is alleged to owe by reason of his or her actions in the role of an officer, it is within the scope of the indemnity. It is because any such liability is within the scope of the indemnity that reasonable costs incurred in defending any such assertion of liability are themselves also within the scope of the indemnity. Beazley JA and Handley AJA there agreed with Campbell JA. Special leave to appeal was refused: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484. The fact that Mr Rickus thereafter ceased to occupy that office is not considered to be a reason to reach any contrary conclusion.
Case: Woolworths Ltd v Kelly (1991) 3 ACSR 431
Outcome: cited
The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.
Case: AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 
Outcome: applied
applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), 'an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents.
Case: Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284
Outcome: distinguished
applicant advanced an argument based upon the judgment of Lee J in Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at [85] [87]. If his Honour is to be understood as saying that the act of considering legal advice in the course of exercising statutory power necessarily effects a waiver because the advice is taken to be 'incorporated' into the decision, it is inconsistent with the above authorities and cannot be accepted. There may be cases where a statutory decision-maker does some positive act to rely upon advice to support its decision (which is one possible construction of Candacal ) . Whether or not this would constitute a waiver is not material to the present case because nothing done by the Review Board reveals that it has done any positive act of reliance upon the legal advice it received making it inconsistent for it to maintain the confidentiality in the communications. The applicant does not contend that the disclosure of the documents by the staff of the OFLC, as secretariat to the Review Board, to the Attorney-General's Department constitutes a waiver of privilege accepting, rightly or wrongly, that there is no such waiver by force of the combined operation of the Legal Services Directions 2005 (cl 10.1) and subs 55ZH(1) and (4) of the Judiciary Act but contends that the disclosure of the documents by the Attorney-General's Department to the AGS solicitor for the Attorney-General does constitute such a waiver. I cannot agree, and for the following reasons.
Case: Carlos v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1087 ; (2001) 113 FCR 456
Outcome: distinguished
for the applicant referred me to the decision of a Full Court of this Court in Carlos v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1087 ; (2001) 113 FCR 456 at [37] [39] in support of the contention that there cannot be privilege of the type asserted where the body involved is obliged to accord natural justice. However, I have not found this reference to be of any real assistance, presumably because in dealing with the question of disclosure of a particular document, the Court in Carlos was not concerned with broad principles of natural justice, nor was it concerned with issues of privilege. The focus of the passage relied on by the applicant is not a distinction between the provision of information to a decision-maker from an internal or external source, but rather a distinction between the provision of factual material that is relevant to the decision, and the provision of information which is not related to the facts of the matter.
Case: Webb v Commissioner of Taxation (1993) 44 FCR 312
Outcome: referred to
Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted.
Case: George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: City of Wanneroo v Holmes (1989) 30 IR 362
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].