mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Vitali v Stachnik [2001] NSWSC 303
Outcome: cited
There is now a considerable body of authority dealing with this provision although its proper application is not altogether free from difficulty. The first matter to emphasise about the exception in subs (3) is that it applies not to a document as such but to a representation or representations contained in a document. It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3): see generally Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235 at [27] . As Barrett J put the matter in Vitali v Stachnik [2001] NSWSC 303 at [12] : The purpose of the exclusion is ... to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings.
Case: Nikolaidis v Legal Services Commissioner [2007] NSWCA 130
Outcome: considered
It is well established that before it can be said that a representation was prepared or obtained in contemplation of a proceeding, it must be established that a proceeding was "likely" or "reasonably probable": see Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [61] and the cases there mentioned. The two questions which need to be determined for present purposes are, first, can it be said that legal proceedings were in contemplation and, second, if so, were they in the contemplation of the person or persons who prepared or obtained the relevant representations? For present purposes I am satisfied that representations contained in the documents which indicate that there were products purchased from retailers which did not contain AMC's insert in the packaging (ie products which were parallel imports) are at least presently relevant representations. As to the question whether legal proceedings were in contemplation at that time between AMC and Hamilton, I am not satisfied on the material before me such was the case. As I indicated above, the evidence does not suggest there was a likelihood or reasonable probability of legal proceedings at the relevant time. While the relationship of the parties at this time was undoubtedly tense, they had by then been in a long term relationship spanning 14 years. Such references as were made in correspondence to Hamilton's alleged responsibility to compensate AMC either for Dr Lam's success fee or for loss sustained by AMC from parallel importing could at best only be properly treated as reflecting a negotiating process between the parties at this stage. 12 When one turns to the contemplation of legal proceedings in Hong Kong, the situation is quite different. It is clear that from August 2002, as the investigation into parallel importing appeared to bear fruit in AMC's eyes, the prospect of taking proceedings against distributors and retailers was a very real one. Notwithstanding that AMC obviously was wishing to resolve disputes without resort to legal proceedings and the correspondence reflects this it also makes it perfectly plain that litigation was contemplated. It suggests that, by early September, proceedings were pending and on the evidence before me a writ had been issued by mid-October which, coincidentally, was the time at which the last group of documents in the bundle were referrable. For this reason I am prepared to infer that so far as Dr Keung and Dr Lam were concerned, legal proceedings throughout the time period covered by the business records in question were likely or reasonably probable against Hong Kong distributors and/or retailers involved in alleged parallel importing.
Case: Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083
Outcome: cited
For my own part, I am satisfied that the decision of Santow J places an undue limitation upon the clear wording of s 69(3) and is inconsistent with the underlying purpose of the provision itself. Section 69(3) refers only to a proceeding without any limitation as to parties: see the observations of Hamilton J in Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4] (4).
Case: Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481
Outcome: cited
The unreliability of evidence of representations made or prepared in a context which might cause the representation to be self serving is, in my view, as likely to exist whether or not the proceedings in contemplation was the one in which the representation was sought to be tendered. It is, in my view, unsurprising that the decision of Santow J has in this respect attracted criticism: see Odgers, Uniform Evidence Law (7 th ed) at [1.3.2880]. For my own part I am not prepared to follow the Kang v Kwan decision. I am satisfied that the legal proceedings in contemplation referred to in s 69(3) relate to any legal proceedings in which the representation might become admissible and is not confined to the proceedings in which the statement is sought to be tendered: cf Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481 at [487A].
Case: Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1051
Outcome: cited
The applicant appeals from a decision of the Administrative Appeals Tribunal constituted by the Honourable C R Wright QC, Deputy President, which affirmed a decision of a delegate of the Minister to cancel the applicant's visa under s 501(2) of the Migration Act 1958 (Cth) (the Act): Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1051. It was not in dispute that the applicant failed to pass the "character test" because he had a "substantial criminal record": s 501(6)(a) ,(7)(c). The Minister nevertheless had a discretion to refuse to cancel the visa and the delegate was subject to ministerial directions under s 499. 2 On 3 December 2003 the applicant was convicted by a jury in the Supreme Court of Tasmania of attempting to murder his wife Ann Flowers. He was sentenced to imprisonment for a period of four and a half years with parol eligibility after two years three months. 3 At the trial Mrs Flowers gave evidence that on the evening of 9 May 2003 she returned to the matrimonial home at about 7.55 pm and found her husband waiting inside. He appeared to have been drinking heavily. She went to the bedroom and lay on the bed reading a magazine. Shortly afterwards the applicant entered, picked up a loaded gun which was kept in the bedroom, and said to her "I've been waiting all day for you you bitch you are going to die you bitch."
Case: Luu v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1021
Outcome: applied
In the context of decisions under s 501 it was not open to the applicant to challenge his conviction or the essential facts giving rise thereto: Luu v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1021 , Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647.
Case: Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647
Outcome: applied
In the context of decisions under s 501 it was not open to the applicant to challenge his conviction or the essential facts giving rise thereto: Luu v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1021 , Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647.
Case: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: distinguished
Senior counsel for the applicant submitted that there was jurisdictional error in that the decision of the Tribunal was so unreasonable that no reasonable decision-maker could make it ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223) and that its fact finding process was "tainted by extreme irrationality or illogicality". 21 This ground was said to arise because, as expressed in its conclusion quoted above, the Tribunal had formed a "perception" without logically reasoning to it. The decision was arbitrary without a logical course of reasoning. 22 This argument is without foundation. Plainly in par 24 of its reasons the Tribunal was using "perception" in the sense of a conclusion or finding, not some idiosyncratic or capricious impression. It was entirely open to the Tribunal to conclude on the evidence, and particularly that relating to the offence itself, that the applicant was a man who was, in the language of the Tribunal, "self-absorbed, emotive and vengeful". There was every reason to think that if released and at large in Australia he might continue to pursue Mrs Flowers. This was a case where even if the risk of re-offending could be assessed as slight, the possible outcome if the risk eventuated would be catastrophic, involving the death of or serious injury to a particular person.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
This was not a relevant consideration in the Peko-Wallsend sense, that is to say it was not a consideration the Tribunal was bound to take into account, having regard to the text of the Migration Act or by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39-41. At best it was evidence. Even if it had been ignored there would have been no legal error by the Tribunal, still less jurisdictional error. 25 But in any event there is no reason to conclude that the Tribunal did not pay regard to Dr Sale's report. Moreover, the character and medical problems detailed by Dr Sale are by no means confined to the lymphoma question. It is a considerable distortion to impute to Dr Sale the view that (i) all the applicant's criminal behaviour was due to his fear of lymphoma, (ii) it is now established he does not have lymphoma, (iii) ergo there is now no risk of further criminal behaviour, and in particular, towards his wife. 26 The appeal will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: Counsel for the Applicant: S P Estcourt QC and G J Barns Solicitor for the Applicant: Don Armstrong Counsel for the Respondent: G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 March 2006 Date of Judgment: 28 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/307.html
Case: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Outcome: discussed
In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Mahoney J adopted a threefold enquiry in determining whether a binding contract had been concluded between the parties. His Honour said that it would be of assistance to distinguish between three questions: &#8226; Did the parties arrive at a consensus? &#8226; If they did, was it such a consensus as was capable of forming a binding contract? &#8226; And, if it was, did the parties intend that the consensus at which they arrived should constitute a binding contract?
Case: Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528
Outcome: referred to
There are many cases to the same effect. See for example Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 316 317; Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528 at 533; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548.
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: referred to
There are many cases to the same effect. See for example Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 316 317; Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528 at 533; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548.
Case: Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: referred to
The case which an applicant presents must support the case which that applicant has pleaded. If the evidence supports a different case an application should be made to amend the pleadings to bring them into line with the facts as proved. See, for example, Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 286 287; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at [132].
Case: Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd [2004] VSC 1
Outcome: referred to
A similar approach was taken by Gillard J in Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd [2004] VSC 1 at [90] , and also by Habersberger J in P R A Electrical Pty Ltd v Perseverance Exploration Pty Ltd [2006] VSC 432 at [28] [29].
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: referred to
The case which an applicant presents must support the case which that applicant has pleaded. If the evidence supports a different case an application should be made to amend the pleadings to bring them into line with the facts as proved. See, for example, Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 286 287; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at [132].
Case: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209
Outcome: referred to
The case which an applicant presents must support the case which that applicant has pleaded. If the evidence supports a different case an application should be made to amend the pleadings to bring them into line with the facts as proved. See, for example, Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 286 287; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at [132].
Case: Macdonald v Australian Wool Innovation Ltd [2005] FCA 105
Outcome: discussed
I discussed a number of these cases in Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 at [206] [209] and [211] [229]. That case concerned two senior scientists who left their employ with a large public company because they were offered the opportunity to engage in a high risk, but high reward, venture with the respondent. They claimed they had entered into an agreement with the respondent which was binding and legally efficacious, but that the respondent had repudiated that agreement. The respondent denied that any such agreement had been concluded. 177 I held that the applicants had established the existence of the binding agreement pleaded. The board of the respondent, a public company, had specifically considered and approved a detailed and documented proposal for the particular venture. Not all the "i"s were dotted and not all the "t"s crossed. However, the critical elements had all been agreed, and those that were not expressly agreed would readily be the subject of implication. 178 The present case is a far cry from Macdonald . Even on Mr Quinlan's case a number of essential terms were uncertain or lacking. Alternatively, if those terms are not regarded as "essential", they were terms of the kind that would ordinarily be expected to be agreed in a complex agreement involving major property developments and potentially large amounts of money. I refer in particular to matters such as: &#8226; the funding arrangements that would be put in place to support the venture, ie to purchase and develop properties; &#8226; the duration of the venture; &#8226; how and when profits would be distributed; and &#8226; the exact terms upon which the $500,000 would be paid, if called upon.
Case: Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310
Outcome: referred to
There are many cases to the same effect. See for example Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 316 317; Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528 at 533; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
Even accepting Mr Quinlan's account of the relevant conversations, he has not established that the parties arrived at a consensus. If they did, it was not a consensus that was capable of forming a binding contract. And, if it was, viewed objectively, in accordance with Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] , the parties did not intend that the consensus at which they arrived should constitute a binding contract. 182 In arriving at that conclusion, I have given weight to the fact that the discussions between the parties concerned major property developments. It would have been plain to Mr Quinlan that any venture of the type he contemplated would have required millions of dollars in finance. The arrangement that he asserts could never have gotten off the ground without the Brady interests being prepared to contribute large amounts of money. Mr Quinlan had no significant assets, and no capacity to borrow even relatively modest amounts of money. 183 I have also given weight to the fact that, at the relevant time, Mr Quinlan and Mr Brady were barely acquaintances. This was not a handshake deal done between longstanding business associates, where perhaps some latitude in relation to formality might be accorded.
Case: Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Outcome: discussed
A particularly helpful statement of the relevant legal principles is to be found in Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106. The issue in that case was whether a binding agreement had been made in December 1990 between two Toyota companies, and the respondent, for a rescue package, the respondent having been in financial difficulties for some months. The negotiations resulted in a letter dated 19 December 1990 which, together with a one page enclosure referred to the "now agreed to conditions". The respondent claimed that Mr Morgan had telephoned a senior Toyota official shortly after receipt of the letter, and accepted the offer contained in it. 168 It was important to note that the enclosure, which contained the details of the rescue package, set out various conditions relating to the offer, a timetable under which those conditions had to be met, and a statement to the effect that if the financial position indicated that the Ken Morgan group could not be viable even after the current offer was concluded, Toyota would not proceed with that offer. 169 The trial judge held that a binding agreement was made in December 1990, the terms of which were set out in the letter and the enclosure. On appeal, the Full Court of the Supreme Court of Victoria overturned that finding.
Case: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651
Outcome: cited
As I have noted, there is no dispute that the Minister was required to comply with the rules of procedural fairness before making the decision to cancel the applicant's visa. There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82 ; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
In assessing the reasonableness of the Minister's actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department's attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa.
Case: Plaintiff S157 v Commonwealth (2003) 211 CLR 476
Outcome: cited
As I have noted, there is no dispute that the Minister was required to comply with the rules of procedural fairness before making the decision to cancel the applicant's visa. There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82 ; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651.
Case: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
As I have noted, there is no dispute that the Minister was required to comply with the rules of procedural fairness before making the decision to cancel the applicant's visa. There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82 ; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651.
Case: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420
Outcome: discussed
decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430.