mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500
Outcome: cited
It is well recognised that a claim of legal professional privilege will not be upheld if the party resisting the claim for legal professional privilege can show reasonable grounds for believing that the communication effected by the document for which privilege is claimed was made for an illegal or improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501; Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500; and see generally AWB Ltd v Cole (No 5) [2006] FCA 1234 at [211] - [219] . This does not require a demonstration that the legal advisers were themselves conscious participants in fulfilling the improper purpose: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 at 106. While it is not sufficient merely to allege improper purpose, it is not necessary fully to prove the allegations. There has to be something to give colour to the charge a prima facie case: Propend at 514.
Case: AWB Ltd v Cole (No 5) [2006] FCA 1234
Outcome: cited
It is well recognised that a claim of legal professional privilege will not be upheld if the party resisting the claim for legal professional privilege can show reasonable grounds for believing that the communication effected by the document for which privilege is claimed was made for an illegal or improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501; Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500; and see generally AWB Ltd v Cole (No 5) [2006] FCA 1234 at [211] - [219] . This does not require a demonstration that the legal advisers were themselves conscious participants in fulfilling the improper purpose: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 at 106. While it is not sufficient merely to allege improper purpose, it is not necessary fully to prove the allegations. There has to be something to give colour to the charge a prima facie case: Propend at 514.
Case: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92
Outcome: cited
It is well recognised that a claim of legal professional privilege will not be upheld if the party resisting the claim for legal professional privilege can show reasonable grounds for believing that the communication effected by the document for which privilege is claimed was made for an illegal or improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501; Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500; and see generally AWB Ltd v Cole (No 5) [2006] FCA 1234 at [211] - [219] . This does not require a demonstration that the legal advisers were themselves conscious participants in fulfilling the improper purpose: Yunghanns v Elfic Pty Ltd [2000] VSC 113 ; (2000) 1 VR 92 at 106. While it is not sufficient merely to allege improper purpose, it is not necessary fully to prove the allegations. There has to be something to give colour to the charge a prima facie case: Propend at 514.
Case: Atkins v St Barbara Mines Ltd (1997) 138 FLR 425
Outcome: cited
Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 670 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) Last Updated: 31 May 2006 FEDERAL COURT OF AUSTRALIA SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 CORPORATIONS scheme of arrangement meeting to be convened pursuant to s 411(1) of the Corporations Act 2001 (Cth) Corporations Act 2001 (Cth) ss 411(1) , 411 (3), 411 (6) Atkins v St Barbara Mines Ltd (1997) 138 FLR 425 cited Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 cited Re Barbeques Galore Ltd [2005] FCA 1519 cited Re Hills Motorway Ltd (2002) 43 ACSR 101 cited Re KAZ Group Ltd [2004] FCA 738 cited IN THE MATTER OF SFE CORPORATION LIMITED ABN 74 000 299 392; SFE CORPORATION LIMITED NSD 934 OF 2006 GYLES J 31 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 934 OF 2006 IN THE MATTER OF SFE CORPORATION LIMITED ABN: 74 000 299 329 BETWEEN: SFE CORPORATION LIMITED PLAINTIFF JUDGE: GYLES J DATE: 31 MAY 2006 PLACE: SYDNEY REASONS FOR ORDERS 1 On 29 May 2006 I made orders convening a meeting of members of SFE Corporation Limited (SFE) pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) and ancillary orders. I said I would deliver short reasons for those orders. These are those reasons. 9 It is proposed that a corporation can attend the meeting and vote by a corporate representative rather than by a proxy, relying upon the decision of Ipp J in Atkins v St Barbara Mines Ltd (1997) 138 FLR 425 at 432. Again, that is a reasonable basis upon which to proceed. 10 I have been taken through the manner in which executive options, employee share acquisition plan shares and executive equity plan shares are to be dealt with and I see no difficulty in what is proposed. 11 There were two aspects of the Explanatory Statement which called for some consideration. The first related to the explanation of the cash and share consideration option. It is not easy to summarise that option in a manner understandable by a lay person. The final result is acceptable. The second arose from the form of the independent expert's report (the Expert Report) which is incorporated by reference in the Explanatory Statement.
Case: Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758
Outcome: cited
Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 670 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) Last Updated: 31 May 2006 FEDERAL COURT OF AUSTRALIA SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 CORPORATIONS scheme of arrangement meeting to be convened pursuant to s 411(1) of the Corporations Act 2001 (Cth) Corporations Act 2001 (Cth) ss 411(1) , 411 (3), 411 (6) Atkins v St Barbara Mines Ltd (1997) 138 FLR 425 cited Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 cited Re Barbeques Galore Ltd [2005] FCA 1519 cited Re Hills Motorway Ltd (2002) 43 ACSR 101 cited Re KAZ Group Ltd [2004] FCA 738 cited IN THE MATTER OF SFE CORPORATION LIMITED ABN 74 000 299 392; SFE CORPORATION LIMITED NSD 934 OF 2006 GYLES J 31 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 934 OF 2006 IN THE MATTER OF SFE CORPORATION LIMITED ABN: 74 000 299 329 BETWEEN: SFE CORPORATION LIMITED PLAINTIFF JUDGE: GYLES J DATE: 31 MAY 2006 PLACE: SYDNEY REASONS FOR ORDERS 1 On 29 May 2006 I made orders convening a meeting of members of SFE Corporation Limited (SFE) pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) and ancillary orders. I said I would deliver short reasons for those orders. These are those reasons. 7 Having considered the authorities referred to by counsel for the applicant Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 and Re Barbeques Galore Ltd [2005] FCA 1519 and the material provided concerning the views of the Takeovers Panel, these clauses are not such as to cause me to refrain from ordering the meeting. I would only be inclined to do that if the amount of the break fee was such that it could influence voting at the meeting to be convened or if there were some other unusual circumstances. As at present advised, I do not think that the present case falls within either head. This is not the occasion to undertake any more general consideration of these provisions.
Case: Re Barbeques Galore Ltd [2005] FCA 1519
Outcome: cited
Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 670 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) Last Updated: 31 May 2006 FEDERAL COURT OF AUSTRALIA SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 CORPORATIONS scheme of arrangement meeting to be convened pursuant to s 411(1) of the Corporations Act 2001 (Cth) Corporations Act 2001 (Cth) ss 411(1) , 411 (3), 411 (6) Atkins v St Barbara Mines Ltd (1997) 138 FLR 425 cited Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 cited Re Barbeques Galore Ltd [2005] FCA 1519 cited Re Hills Motorway Ltd (2002) 43 ACSR 101 cited Re KAZ Group Ltd [2004] FCA 738 cited IN THE MATTER OF SFE CORPORATION LIMITED ABN 74 000 299 392; SFE CORPORATION LIMITED NSD 934 OF 2006 GYLES J 31 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 934 OF 2006 IN THE MATTER OF SFE CORPORATION LIMITED ABN: 74 000 299 329 BETWEEN: SFE CORPORATION LIMITED PLAINTIFF JUDGE: GYLES J DATE: 31 MAY 2006 PLACE: SYDNEY REASONS FOR ORDERS 1 On 29 May 2006 I made orders convening a meeting of members of SFE Corporation Limited (SFE) pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) and ancillary orders. I said I would deliver short reasons for those orders. These are those reasons. 7 Having considered the authorities referred to by counsel for the applicant Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 and Re Barbeques Galore Ltd [2005] FCA 1519 and the material provided concerning the views of the Takeovers Panel, these clauses are not such as to cause me to refrain from ordering the meeting. I would only be inclined to do that if the amount of the break fee was such that it could influence voting at the meeting to be convened or if there were some other unusual circumstances. As at present advised, I do not think that the present case falls within either head. This is not the occasion to undertake any more general consideration of these provisions.
Case: Re Hills Motorway Ltd (2002) 43 ACSR 101
Outcome: cited
Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 670 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 (31 May 2006) Last Updated: 31 May 2006 FEDERAL COURT OF AUSTRALIA SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670 CORPORATIONS scheme of arrangement meeting to be convened pursuant to s 411(1) of the Corporations Act 2001 (Cth) Corporations Act 2001 (Cth) ss 411(1) , 411 (3), 411 (6) Atkins v St Barbara Mines Ltd (1997) 138 FLR 425 cited Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758 cited Re Barbeques Galore Ltd [2005] FCA 1519 cited Re Hills Motorway Ltd (2002) 43 ACSR 101 cited Re KAZ Group Ltd [2004] FCA 738 cited IN THE MATTER OF SFE CORPORATION LIMITED ABN 74 000 299 392; SFE CORPORATION LIMITED NSD 934 OF 2006 GYLES J 31 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 934 OF 2006 IN THE MATTER OF SFE CORPORATION LIMITED ABN: 74 000 299 329 BETWEEN: SFE CORPORATION LIMITED PLAINTIFF JUDGE: GYLES J DATE: 31 MAY 2006 PLACE: SYDNEY REASONS FOR ORDERS 1 On 29 May 2006 I made orders convening a meeting of members of SFE Corporation Limited (SFE) pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) and ancillary orders. I said I would deliver short reasons for those orders. These are those reasons. 8 It is not proposed that ineligible foreign shareholders constitute a separate class, relying upon the decision of Barrett J in Re Hills Motorway Ltd (2002) 43 ACSR 101 at 104. That appears to be a reasonable basis for proceeding in the absence of contrary argument.
Case: Australian Broadcasting Commission v Parish (1981) 41 FLR 292
Outcome: cited
On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. This Court has made it clear in Practice Note 14 that it will take a restrictive approach to discovery to ensure that excessive and wasteful discovery does not occur.
Case: Index Group of Companies Pty Ltd v Nolan [2002] FCA 608
Outcome: cited
On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. This Court has made it clear in Practice Note 14 that it will take a restrictive approach to discovery to ensure that excessive and wasteful discovery does not occur.
Case: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241
Outcome: referred to
passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with this statement of principles and held that it had even stronger application to certified agreements than it did to awards.
Case: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208
Outcome: referred to
passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with this statement of principles and held that it had even stronger application to certified agreements than it did to awards.
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Outcome: referred to
this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations.
Case: Kilburn v Enzed Precision Products Pty Ltd (1988) 4 VIR 31
Outcome: referred to
an employer wrongfully terminates an employment contract which has a fixed term, thereby causing damage to an employee, damages are normally calculated on the basis that the employee would have enjoyed the benefits of the contract for the remainder of its term: see Kilburn v Enzed Precision Products Pty Ltd (1988) 4 VIR 31 at 33; Patterson v Middle Harbour Yacht Club (1996) 64 FCR 405 at 406; Martin v Tasmanian Development and Resources (1999) 89 IR 98 at 120-1. The employee is under an obligation to mitigate his loss by seeking to obtain alternative remunerative employment. Although the AWA had a three year term, Mr Van Efferen only sought damages until CMA's work on the Dolphin Project ceased.
Case: Kucks v CSR Limited (1996) 66 IR 182
Outcome: applied
dealing with the construction of awards in Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J observed that: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand."
Case: McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375
Outcome: referred to
argument on damages seemed to proceed on the assumption that compensatory damages were not available. It resisted the "loss of chance" claim on the basis that Mr Van Efferen did not have a contract for a specific term and that no question of the possibility of renewal of the contract arose: see McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 at 397-8. In this context it relied on the arguments, outlined above at [52] which, it contended, supported the view that there was no causal nexus between any contravention of clause 2.10 and the damage alleged by Mr Van Efferen. More recently, in McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 Buchanan J cautioned that the award of damages for "loss of a chance" could not occur, consistently with Amann Aviation , in the absence of a fixed term contract and evidence supporting the possibility that the contract might be renewed. In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations. As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J's observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J's ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them.
Case: Pan Foods Company Importers and Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20 ; (2000) 170 ALR 579
Outcome: followed
as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers &amp; Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20 ; (2000) 170 ALR 579 at 584 "be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction." An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 437.
Case: Patterson v Middle Harbour Yacht Club (1996) 64 FCR 405 at 406
Outcome: referred to
an employer wrongfully terminates an employment contract which has a fixed term, thereby causing damage to an employee, damages are normally calculated on the basis that the employee would have enjoyed the benefits of the contract for the remainder of its term: see Kilburn v Enzed Precision Products Pty Ltd (1988) 4 VIR 31 at 33; Patterson v Middle Harbour Yacht Club (1996) 64 FCR 405 at 406; Martin v Tasmanian Development and Resources (1999) 89 IR 98 at 120-1. The employee is under an obligation to mitigate his loss by seeking to obtain alternative remunerative employment. Although the AWA had a three year term, Mr Van Efferen only sought damages until CMA's work on the Dolphin Project ceased.
Case: Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82
Outcome: referred to
Russell Rothman J held that both terms should be implied in contracts of employment. In that case they did not avail the employee because, although they had been breached, the plaintiff had suffered no damage by reason of the breaches. On appeal, the New South Wales Court of Appeal went no further than holding that such terms may be implied in contracts of employment. Basten JA was (at [2008] NSWCA 217 ; (2008) 176 IR 82 [32]) inclined to treat the two implied terms as a single obligation. He considered (at [33]) that there was uncertainty as to the "scope and extent of the implied duties." Campbell JA was prepared to assume, without deciding, that an employer owed implied contractual obligations of the kind relied on by Mr Van Efferen. Giles JA (at [1]) was also prepared to assume rather than determine that such implied terms were incorporated in contracts of employment.