mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24
Outcome: cited
It is well established that "an administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so": MM at [40]. If a statute states expressly the factors that must be taken into account that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 , 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , 347-348.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
It is well established that "an administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so": MM at [40]. If a statute states expressly the factors that must be taken into account that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985) 162 CLR 24 , 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , 347-348.
Case: Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188
Outcome: cited
Section 127(1) of the ASIC Act imposes an obligation on ASIC to take all reasonable measures to protect the unauthorised use or disclosure of information given to it in confidence in performance of its functions: Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188 at [7] . Section 127(4) provides an exception to that general principle. Where ASIC is satisfied "particular information" will assist, for example, the AFP, then disclosure of that "particular information" to the AFP will be taken to be an authorised use and disclosure of that "particular information". 19 The exercise of the power under s 127(4) of the ASIC Act is the exercise of an additional power in relation to the "particular information" identified by ASIC at the time of the request by the AFP. It necessarily will involve consideration of "information" that did not exist at the time of the examination (here, the questions and answers recorded in the transcript) or the taking of the witness statement (here, the statement). It will also necessarily involve the consideration of matters that did not exist at the aforementioned times, including the nature of the agency function or power (here, criminal investigation by the AFP) and the usefulness of the information to that exercise of power (here, the conduct of that investigation). Section 127(4A) of the ASIC Act provides that ASIC may impose conditions in relation to disclosure of the "particular information" under s 127(4). The conditions imposed by ASIC in respect of the AWB Information are those set out in [7] above. 20 In the present case, the dispositive issue (see [13] above) has two aspects to it. The two aspects to consider are: 1. whether, in exercising the power under s 127(4) , by deciding to pass the AWB Information to the AFP, ASIC failed to consider a relevant matter; and 2. a more basic question of power. For reasons which will become obvious, it is first necessary to deal with the question of power. 21 There is no factual foundation yet established that there is material in the AWB Information to which the legal professional privilege of AWB attaches. However, if the AWB Information does contain information to which the legal professional privilege of AWB attaches, ASIC would have power to pass on that material to the AFP. That conclusion requires development.
Case: NP Generations Pty Ltd v Feneley (2001) 80 SASR 151
Outcome: cited
I should also note that examinees were even given an opportunity to raise an issue as to a possible third-party privilege. No doubt this is the best policy, but whether it was required as a matter of law may be doubted: see Rochfort at 145-47 (noting that in general effort should be made to respect potential interests of the third-party lawyer but that there are various circumstances where the interests of justice will trump protection of those interests). In MM , Emmett J held that a person must be given a reasonable opportunity to claim privilege on behalf of others as well as himself or herself. In support of this proposition, his Honour relied on the Full Court's decision in Citibank ; however, that decision was disapproved by the later Full Court decision in JMA . Moreover, the conclusion in MM rested on a premise which may be in doubt. Emmett J reasoned (at [35]) that an examinee "would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost ." (Emphasis added.) In other words, his Honour found that the obligation to make a claim on behalf of others must exist in order to prevent waiver. However, as I have already noted, and as the parties in this case recognised from the start, only the holder of the privilege may waive it. Thus there is no possibility that the failure of an employee to claim privilege on behalf of the corporation would result in waiver or loss of the privilege (except perhaps where the employee is authorised to waive the privilege). To the contrary, it is precisely if a general duty to claim the privilege is imposed that a risk of waiver arises - that is, imagine that an employee under a duty was given a reasonable opportunity to claim privilege on behalf of the employer but failed to do so; under Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 that would be conduct inconsistent with the maintenance of the privilege and would mean that any employee, without the knowledge or authority of the corporate employer, could waive the corporation's privilege. For those reasons, it does not seem either necessary or wise to impose a general obligation on an examinee to claim privilege on behalf of a third party, nor to create a general obligation on behalf of the examiner to give the examinee a reasonable opportunity to make such a claim. While an employee may have an obligation in contract or equity to maintain the confidences of his or her employer ( NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at [16]-[19]), that cannot be converted into an ability to control the exercise of the employer's legal professional privilege.
Case: United States v Western Electric Corp Inc 1990-1 Trade Cases |P 68,939; 1990 WL 39129 (DDC 1990)
Outcome: cited
However, neither AWB nor AWBI took any step to review the decision of the investigator to refuse to permit AWB to be represented at the examinations. Whether such an effort would have succeeded seems unlikely (see [36]-[37] below); in this regard, it is illuminating to examine United States v Western Electric Corp Inc 1990-1 Trade Cases |P 68,939; 1990 WL 39129 at *1 (DDC 1990) (stating that the company had no right to have its own counsel present, whether in addition to or in lieu of individual counsel, at examinations of present or former employees because that "would be an obvious prescription for frustrating investigations into wrongdoing").
Case: Wrench LLC v Taco Bell Corporation 212 FRD 514 (WD Mich 2002)
Outcome: cited
If, however, ASIC meant to submit not that it could compel a person (here, an employee or former employee) to disclose a third party's (here, a company's) privilege by force of statute, but rather that the person may lack the standing to assert the third party's privilege, then that contention may be accepted. Just as an employee can only waive a corporation's privilege if he or she has authority to do so (typically, where the person is a current officer or director), so too may an employee only assert a claim of privilege belonging to a corporation if he or she has the requisite authority: Commodity Futures Trading Commission v Weintraub [1985] USSC 102 ; 471 US 343 , 348-49 (1985); In re Grand Jury Proceedings [2006] USCA1 234 ; 469 F3d 24 (1 st Cir 2006); Wrench LLC v Taco Bell Corporation 212 FRD 514 , 517 (WD Mich 2002) (collecting cases); see also S McNicol, Law of Privilege (1992) at 161-62 (citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 for the proposition that an employee cannot assert the privilege of self-incrimination on behalf of a corporation [at that time corporations were still thought to have such a privilege] because the privilege is personal to the holder). To put it another way, the ASIC investigator was legally correct when he told counsel for AWB that "[n]either ... could [the employees] make the claim [of privilege on behalf of AWB] nor [could they] waive the claim...": [12] above.
Case: Award Simplification Case (1997) 75 IR 272
Outcome: distinguished
Counsel also argued that I should look at the earlier award in 1965 which was "simplified": see Award Simplification Case (1997) 75 IR 272. I agree with counsel for TPT that it would not be proper to have regard to such factors in a context where no evidence of such matters was raised in the court below. The learned Magistrate noted at [5] that there was no dispute about the facts. The dispute concerned the correct interpretation of the relevant terms of the Award. The history of the earlier award would be a matter of fact, provable by evidence. 17 The appeal will be allowed and the orders made on 15 October 2007 set aside. In place of those orders it is ordered that the respondent's application No. LNG6 of 2007 be dismissed. Leave is granted to the parties to file written submissions as to costs within seven days. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 10 April 2008 Counsel for the Appellant: J Bourke Counsel for the Respondent: W Friend Date of Hearing: 2 April 2008 Date of Judgment: 10 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/464.html
Case: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813
Outcome: cited
His Honour noted that there was no dispute about the facts. His Honour cited a number of authorities on the construction of awards: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 520; Kucks v CSR Limited (1996) 66 IR 181 at 184 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813 at [57] . In the latter case French J referred to an observation in his earlier decision City of Wanneroo v Holmes (1989) 30 IR 362 at 380: Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Case: City of Wanneroo v Holmes (1989) 30 IR 362
Outcome: applied
His Honour noted that there was no dispute about the facts. His Honour cited a number of authorities on the construction of awards: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 520; Kucks v CSR Limited (1996) 66 IR 181 at 184 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813 at [57] . In the latter case French J referred to an observation in his earlier decision City of Wanneroo v Holmes (1989) 30 IR 362 at 380: Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Case: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511
Outcome: cited
His Honour noted that there was no dispute about the facts. His Honour cited a number of authorities on the construction of awards: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 520; Kucks v CSR Limited (1996) 66 IR 181 at 184 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813 at [57] . In the latter case French J referred to an observation in his earlier decision City of Wanneroo v Holmes (1989) 30 IR 362 at 380: Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Case: Kucks v CSR Limited (1996) 66 IR 181
Outcome: cited
His Honour noted that there was no dispute about the facts. His Honour cited a number of authorities on the construction of awards: Short v FW Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 at 520; Kucks v CSR Limited (1996) 66 IR 181 at 184 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Unions [2006] FCA 813 at [57] . In the latter case French J referred to an observation in his earlier decision City of Wanneroo v Holmes (1989) 30 IR 362 at 380: Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Case: Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101
Outcome: referred to
On 21 February 2008 I delivered reasons for judgment in relation to an application, made by a Court appointed receiver, for orders: &#8226; that certain funds be added to the funds comprehended by the receivership; &#8226; extending the period of the receiver's appointment; &#8226; extending the time within which the receiver was required to prepare and file a report; &#8226; requiring the respondent to file an affidavit of documents; &#8226; requiring the respondent to provide copies of documents to the receiver on request; and &#8226; requiring the respondent to attend before the receiver for oral examination. See Australian Prudential Regulation Authority v Siminton (No 12) [2008] FCA 101. 2 I made the orders sought save for the order requiring attendance for oral examination. I did not make that order because I was informed that an oral examination had taken place. I reserved the right of the receiver to apply for an order requiring a further oral examination. 3 I reserved the question of costs. As directed each party has filed and served written submissions on what costs orders should be made. I have now considered those submissions.
Case: St George Bank v Rabo Australia Ltd (2004) 211 ALR 147
Outcome: cited
The relevant principles in relation to preliminary discovery were summarised by Hely J in St George Bank v Rabo Australia Ltd (2004) 211 ALR 147 at [153]-[154]. These indicate that O 15A r 6 is to be beneficially construed and given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court in the light of the specific circumstances. Each of the elements in sub-paragraphs (a) to (c) of r 6 must be established. The test for determining whether the applicant has "reasonable cause to believe" as required by r 6(a) is an objective one. There is no requirement for the applicant to make out a prima facie case, but a mere assertion that there may be a right to obtain relief is not sufficient. There must be more than suspicion or conjecture. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application in so far as it is based on that cause of action. 15 In relation to r 6(b), the authorities indicate that the question is whether an applicant has sufficient information for the limited purpose of making a decision as to whether to commence proceedings in the Court. It is permissible for an applicant to obtain discovery to determine what defences are available to the respondent, and the possible strength of these defences, but discovery is not available to an applicant so that it may exhaust every possible line of defence. The question as to whether sufficient information is available requires an objective assessment to be made.
Case: Glencore International AG v Selwyn Mines Ltd (2005) FCA 801
Outcome: cited
The relevant principles were also considered by Lindgren J in Glencore International AG v Selwyn Mines Ltd (2005) FCA 801. In that case, his Honour indicated that the measure of preliminary discovery is the extent of information that is necessary, but no more than that which is reasonably necessary, in order to overcome the insufficiency of information already possessed by the applicant after it has made all reasonable inquiries to enable it to make a decision as to whether to commence proceedings.
Case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] (unreported, No. NG 351 of 1996)
Outcome: cited
In Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] (unreported, No. NG 351 of 1996), Lindgren J stated at [41]: 'The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding."' 18 At [50], his Honour said: 'Having regard to the extensive scientific research which has been carried out by or on behalf of Alphapharm and its strong prima facie case, it is difficult to avoid the conclusion that in seeking re-action discovery, it is seeking to eliminate a possibility, rather than to obtain key information without which it is not able to commence a proceeding. No doubt inspection of the documents referred to in Alphapharm's application would assist it in taking that decision, but I am of the view that it already has reasonably sufficient information to enable it to decide. Another way of expressing the matter is to say that Alphapharm has not, after making all reasonable inquiries, come up against an obstacle consisting of the lack of key information which it reasonably needs to enable it to decide whether to commence a proceeding; rather, it hopes to be comforted in taking the decision which it already has sufficient information to enable it to take .' (Emphasis added)
Case: C7 Pty Limited v Foxtel Management Pty Ltd [2001] FCA 1864
Outcome: cited
These remarks, particularly at [50], are apposite to the present case. It is necessary for an applicant to show more than a mere assertion that there is a case against a prospective respondent: see C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [39] . The purpose of preliminary discovery is not to produce material which will strengthen or enhance a decision to commence proceedings but rather to provide what is reasonably necessary to enable the decision to be made. 20 The respondents resist the application and submit that the application must fail because essential elements which must be established under r 6(a) to (c) in order to found jurisdiction in the Federal Court have not been made out. In addition, the respondents submit that as a matter of discretion, the Court should refuse to grant the discovery sought on the basis that it is oppressive and so broadly cast as to encompass what are likely to be a substantial number of irrelevant documents. 21 In relation to r 6(a), the respondents submit that, objectively approached, there is no reasonable cause to believe that the applicant may have a right to obtain relief in the Federal Court. This is because the elements of the prospective cause of action advanced by the applicants which might attract federal jurisdiction, namely, a claim for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth), are not present on the evidence. It is said that as an objective conclusion, it has not been established that the elements of such an action can be made out. For present purposes the respondents do not dispute that there may be a cause of action in contract, but say this is not sufficient to ground jurisdiction for the grant of preliminary discovery because it lacks the necessary federal element to satisfy r 6(a) so that there is a right to relief in the Federal Court. Unless there is reasonable cause to believe there is a federal cause of action, it is said that the preliminary discovery application must be refused for want of jurisdiction.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: cited
The Tribunal was placed in a difficult situation by reason of the issue having been expressly adverted to only after the completion of the hearing in the way it was. However, the Tribunal, by implication, professed to be aware of s 7(1) and then went on to expressly consider that issue in the decision. In doing so, it held that there was no evidence in relation to it. That was not correct. To so hold was an error on a question of law within the meaning of s 44(1) of the Administrative Appeals Tribunal Act ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355 (agreed with by Brennan J and Deane J); Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [21] [25]).