mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620 ; (2007) 164 FCR 32
Outcome: cited
was also submitted on behalf of Mr Watson that the privilege against self-incrimination has a role to play in related civil cases. In Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620 ; (2007) 164 FCR 32 at [9] (p 36), Finkelstein J said: In the case of self-incrimination privilege the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 574; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 392; Sorby 152 CLR at 290, 294. That will not be difficult to show when, as here, the proceeding is aimed at proving that the directors engaged in conduct which would establish, or go a long way toward establishing, that they had also committed criminal acts. I do not disagree with these statements of principle. It must, however, be remembered that the examinations which are recorded in the transcripts were conducted as part of an investigation undertaken by ASIC pursuant to s 13 and ss 19 27 of the ASIC Act. In examinations conducted as part of such an investigation, the ASIC inspector may require the examinee to answer a question that is put to the examinee at the examination which is relevant to a matter that ASIC is investigating (s 21(3)). The examination is to take place in private (s 22) and a written record of the examination is to be created and kept (s 24). Under s 25(3), ASIC may, subject to such conditions as it may wish to impose, give to a person a copy of the written record of the examination.
Case: Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125
Outcome: cited
for the examinees have submitted that express undertakings should be required by the Court in the circumstances of the present case and that the precise terms upon which access is to be granted should be spelled out in order to avoid any future misunderstanding as to those terms. Counsel for the applicants resists the imposition of such a term on the basis that it is unnecessary. He referred me to passages in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 which make clear that the implied undertaking not to use documents produced under compulsion in litigation for any purpose other than the purposes of the litigation for which they were produced is a substantive obligation and need not be incorporated into an express undertaking. Whilst the submissions advanced on behalf of the applicants in this respect may well be correct, I do think that there is some advantage in articulating with precision the precise terms upon which access is to be granted. This is not out of any concern that the legal representatives in the present case would not both understand and respect their obligations under the implied undertaking. It is simply the best way to ensure that all persons to whom access is granted have a very clear understanding of the terms upon which that access is being granted. I prefer to impose a requirement that express undertakings be given. The parties are also in broad agreement that I should provide that notice be given to the examinees if the transcripts are intended to be deployed at the trial. I will accommodate such a term in the orders which I will make. Finally, there is a dispute between the applicants, on the one hand, and the respondent, on the other hand, as to whether or not any claims for legal professional privilege intended to be made by the respondent should be dealt with by way of affidavit or by letter in the first instance. Given the fact that the commencement of the trial is fast approaching, I think that the best course is for the applicants' proposal to be adopted. I will therefore incorporate the applicants' suggested orders in this respect in the orders which I will make. For all of the above reasons, I think that the interests of justice are best served by granting access to the transcripts to certain named legal representatives of the parties and to do so on strict terms as to confidentiality. I propose to make orders accordingly.
Case: R v Saleam [1999] NSWCCA 86
Outcome: applied
Studdy SC focussed more upon matters of confidentiality and relevance. He submitted (correctly, I think) that the applicant for the subpoena must: ... identify a legitimate forensic purpose for which access is sought and establish that it is on the cards that the documents will materially assist his case ( R v Saleam [1999] NSWCCA 86 at [11] per Simpson J (Spigelman CJ and Studdert J agreeing). There was evidence before me which satisfied me that the contents of the transcripts were very likely to be at the heart of the subject matter of the case. Originally, Mr Studdy SC urged upon me that I should send off the transcripts to an independent barrister with a request (or perhaps subject to an order) that that barrister read all of the transcripts and come to a view by reference to the pleadings which particular questions and answers might have some conceivable relevance to the issues in the case as discerned by that barrister. He or she would then mask those portions of the transcript which were considered to be irrelevant. During the course of argument, I indicated to Mr Studdy SC that I saw many difficulties with that approach. In the end, notwithstanding that he did not abandon the suggestion, he did not press it as vigorously as he had at the outset. I am not prepared to engage some third party in the manner and for the purposes suggested by Mr Studdy SC. Mr Studdy SC then urged upon me that I should perform the task that he said the independent barrister should perform. I decline to take that course. It is unnecessary. In addition, the respondent objects to my looking at the transcripts, in any event. All Counsel focussed on questions of confidentiality. These matters are more appropriately dealt with when I come to consider the terms upon which access might be granted.
Case: Reid v Howard (1995) 184 CLR 1
Outcome: cited
for Michael Watson submitted that the privilege against self-incrimination (of which the right to silence is part) is a fundamental bulwark of liberty which is deeply ingrained in the common law of Australia. In support of that submission, Counsel cited Reid v Howard (1995) 184 CLR 1. In Reid v Howard 184 CLR 1 , former clients of a chartered accountant, having learned that he was misappropriating funds, applied for orders in the Supreme Court of New South Wales compelling him to disclose information about certain assets. The accountant claimed privilege against self-incrimination. The Court of Appeal accepted the claim for privilege but made orders compelling disclosure upon conditions intended to protect the accountant from the risk of prosecution. The Crown was not a party to the making of the orders. The High Court held that there is no scope for an exception to privilege against self-incrimination, in criminal or civil proceedings, other than by statute or waiver. At 184 CLR 5, Deane J said: Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts. In Reid v Howard 184 CLR at 11, the majority who delivered the joint judgment (Toohey, Gaudron, McHugh and Gummow JJ) said that the privilege against self-incrimination was not simply a rule of evidence but was " a basic and substantive common law right ". Their Honours went on to hold that there was no scope for an exception to the privilege other than by statute (at 184 CLR 14). In terms of principle, the ASIC Act has modified the privilege against self-incrimination to some extent. As envisaged by the relevant statements of principle in Reid v Howard 184 CLR 1, the scope of the privilege has, to some extent, been modified by statute and that modification of the privilege is effective. However, the answers to the questions asked during the course of the relevant examinations which are recorded in the transcripts cannot be used in criminal proceedings other than as permitted by s 68(3) of the ASIC Act. This is not a case of a court in a civil proceeding seeking to override the privilege before the privilege can be invoked. The simple fact is that, to the extent permitted by law, the privilege in its modified form has already been invoked. For these reasons, I do not think that the examinees have made out their submission that access to the transcripts should be denied as a matter of law.
Case: M20 of 2003 v Minister for Immigration &amp; Anor [2005] FMCA 902 
Outcome: affirmed
This appeal is from a judgment of the Federal Magistrates Court, published as M20 of 2003 v Minister for Immigration &amp; Anor [2005] FMCA 902. The federal magistrate dismissed an application by the appellant, seeking relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal'), dated 30 August 2001 and handed down on 21 September 2001. The proceeding before the Federal Magistrates Court had been remitted from the High Court of Australia to this Court, and from this Court to the Federal Magistrates Court. 2 The appellant is a citizen of India, who arrived in Australia on 12 September 1996 in possession of a student visa. After a renewal of that student visa in 1998, the appellant applied for a protection visa on 26 June 2000. A delegate of the first respondent, then the Minister for Immigration and Multicultural Affairs, and subsequently the Minister for Immigration and Multicultural and Indigenous Affairs, and now again the Minister for Immigration and Multicultural Affairs (in all cases, 'the Minister') refused the application for a protection visa. The appellant sought review of that decision by the Tribunal. The Tribunal conducted a hearing, at which the appellant gave evidence to it. Its decision was that the Tribunal was not satisfied that the appellant was a refugee, and the Tribunal affirmed the decision not to grant a protection visa. 3 After some significant delay, the appellant applied to the High Court, seeking to set aside the Tribunal's decision and to have the matter reheard by the Tribunal, differently constituted. Once the matter had been remitted via this Court to the Federal Magistrates Court, the appellant filed an amended application, seeking relief in the exercise of the jurisdiction conferred on that court by s 483A of the Migration Act 1958 (Cth) ('the Migration Act '). In relation to matters arising under the Migration Act , that jurisdiction is identical to that conferred on this Court by s 39B of the Judiciary Act 1903 (Cth). 4 In that amended application, the appellant made it fairly clear that he wished to assert that some of the factual conclusions of the Tribunal were incorrect. 5 The federal magistrate took the view that, in reality, the appellant's challenge to the Tribunal's decision was based on issues of fact, and that the Federal Magistrates Court had no jurisdiction to review the decision on the merits. In substance, this constituted the reasons of the federal magistrate for dismissing the amended application.
Case: ( Orion Telecommunications Limited, in the matter of Orion Telecommunications Limited [2007] FCA 1389
Outcome: related
On 22 August 2007 I made orders convening a meeting of the ordinary shareholders in the plaintiff, Orion Telecommunications Limited (Orion), for the purpose of considering a scheme of arrangement proposed between Orion and its ordinary shareholders. On 4 September 2007 I gave reasons for those orders ( Orion Telecommunications Limited, in the matter of Orion Telecommunications Limited [2007] FCA 1389). At that stage I had gone through the scheme and the accompanying documents, had dealt with the matters which required attention, and concluded that the scheme was appropriate to be put forward to members for consideration. 2 That consideration has now taken place and the overwhelming response of the shareholders is in favour of the scheme being approved. Counsel yesterday took me through the items requiring proof in order to justify making an order and referred me to the evidence which established each of those matters. I need not now recite each of them beyond saying that, in my opinion, all of the formalities associated with the calling of the meeting, the conduct of the meeting and the recording of the result of the meeting, together with all the statutory preconditions, have been established. 3 Counsel drew to my attention some matters which he indicated required my attention. The first related to some voting restrictions placed on certain shareholders. I agree with counsel's submission that, in the events which have happened, that matter has no consequence because, restriction or no restriction, the overwhelming approval means that there would be no effect upon the vote no matter which view is taken. That is particularly so as not all of the shares would be governed by that restriction. The corresponding wrong calculation as to the result similarly has no effect.
Case: TNT Skypak International Australia Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Outcome: cited
existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: TNT Skypak International Australia Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178. It is for the applicant to precisely identify the question of law which founds the jurisdiction of this Court to hear the appeal: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] .
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Outcome: cited
existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: TNT Skypak International Australia Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178. It is for the applicant to precisely identify the question of law which founds the jurisdiction of this Court to hear the appeal: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] .
Case: Servos v Repatriation Commission (1995) 56 FCR 377
Outcome: cited
7 March 2006 Lee J ordered the applicant to file particulars of grounds of appeal by 28 March 2006. On that day the applicant filed a document which purports to give particulars of the grounds of appeal. On this appeal the applicant sought to adduce further evidence. The material which is sought to be adduced did not come into existence until after the respondent had made the decision complained of. Indeed, the material did not come into existence until after the AAT decision. The applicant sought to tender the material for the purpose of inviting this Court to come to a different conclusion on the facts to that arrived at by the AAT. It should not be admitted: Servos v Repatriation Commission (1995) 56 FCR 377 per Spender J at 385. An examination of the notice of appeal and the particulars contained in that last mentioned document indicate that no question of law is raised on this appeal. Clearly, the grounds in paragraphs (b) and (c) are not questions of law. Nor, in my opinion, are the grounds in paragraphs (a), (d) and (e). In any event, the AAT was obliged to consider any relevant material which had been supplied to it by the respondent pursuant to the respondent's obligation under s 37 of the AAT Act. None of the information supplied was relevant. The complaint in paragraph (d) cannot be sustained. The AAT's reasons, to which I have already referred, show that the AAT did have regard to the applicant's evidence. The AAT was under no obligation to refer to each piece of evidence that the applicant had put before the AAT. Paragraph (e) is simply not relevant. At the time the respondent made the FTL penalty remission decision, which was subject to review before the AAT, the respondent did not know whether there was any tax payable by the applicant for the years under question because the applicant had not lodged her returns. They were still not lodged, I think, at the time that the AAT made its decision.
Case: Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222
Outcome: applied
material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 , which has just been handed down, are indistinguishable in substance from this case. Directions will be given and an order for costs made for reasons given in that decision. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 September 2006 Counsel for the Plaintiffs: Ms V Whittaker Solicitor for the Plaintiffs: Kemp Strang Date of Hearing: 21 August 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1223.html
Case: Australian Competition and Consumer Commission (ACCC) v Radio Rentals Ltd [2005] FCA 1133 ; (2005) 146 FCR 292
Outcome: cited
The conduct was, in all the circumstances, "unconscionable". That term, in this section, is not limited as it is in s 12CA by a connection with the unwritten law (cf s 51AA of the Trade Practices Act 1974 (Cth); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51; GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23 at [113] [126]). Section 12CB is the equivalent of s 51AB of the Trade Practices Act (as to which, see, Australian Competition and Consumer Commission (ACCC) v Radio Rentals Ltd [2005] FCA 1133 ; (2005) 146 FCR 292 at [23] [24]). The width of the concept is underlined by the factors referred to in s 12CB(2).
Case: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: cited
The conduct was, in all the circumstances, "unconscionable". That term, in this section, is not limited as it is in s 12CA by a connection with the unwritten law (cf s 51AA of the Trade Practices Act 1974 (Cth); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51; GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23 at [113] [126]). Section 12CB is the equivalent of s 51AB of the Trade Practices Act (as to which, see, Australian Competition and Consumer Commission (ACCC) v Radio Rentals Ltd [2005] FCA 1133 ; (2005) 146 FCR 292 at [23] [24]). The width of the concept is underlined by the factors referred to in s 12CB(2).
Case: GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23
Outcome: cited
The conduct was, in all the circumstances, "unconscionable". That term, in this section, is not limited as it is in s 12CA by a connection with the unwritten law (cf s 51AA of the Trade Practices Act 1974 (Cth); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51; GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23 at [113] [126]). Section 12CB is the equivalent of s 51AB of the Trade Practices Act (as to which, see, Australian Competition and Consumer Commission (ACCC) v Radio Rentals Ltd [2005] FCA 1133 ; (2005) 146 FCR 292 at [23] [24]). The width of the concept is underlined by the factors referred to in s 12CB(2).
Case: Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553
Outcome: cited
Two general points can be made. First, each of s 12CB(1) and s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (the Act) prohibits certain conduct by "a person" which, in the absence of any special definition, includes a natural person. As all of the conduct in this case occurred in the Australian Capital Territory, the sections apply according to their terms (s 4(1) together with the definitions of "Territory" and "this jurisdiction" in s 5 of the Act). Second, there is no difficulty in each of the first and second defendants being responsible for the conduct of the first defendant ( Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553). 4 Section 12CB(1) provides as follows: "A person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable." 5 There is no doubt that what occurred was "in trade or commerce". "Financial service" is defined in s 12BAB of the Act. That, in turn, incorporates the definition of "financial product" in s 12BAA. A "credit facility" (within the meaning of the regulations) is such a product (s 12BAA(7)(k)). Regulation 2B of the Australian Securities and Investments Commission Regulations 2001 (Cth) defines "credit facility" in a manner that is apt to pick up what took place between the second defendant, Mr Biega and Pepper Homeloans.
Case: Brierley v Dextran Pty Ltd (1990) 9 ACLC 30
Outcome: discussed
There may also be an equitable set off available to the acquirer arising from a distribution, in the case of units, or payment of a dividend in the case of shares, such that the consideration paid at settlement is less than the cash sum in the Notice: Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [99] - [100] . See also Brierley v Dextran Pty Ltd (1990) 9 ACLC 30, although the adjustment at settlement there, arose not in equity or under any statutory provision but by reason of the terms of the offer referrable to accretions, accruing for whatever reason, directly or indirectly to the shares. The offer in that case was to acquire the shares, with accretions for a cash sum. Where the offerees prior to settlement received benefits by way of accretions to the shares (an interim dividend), there was a set-off available to the offeror to that extent. There was no issue as to what was the "cash sum", or whether the offer was for a "cash sum". The "cash sum" was $2.30 per share. The question was whether at settlement, the amount payable was the cash sum less the interim dividend paid on the shares to the offerees prior to settlement. 39 Capricorn was in similar vein. The cash sum offered in the notice of compulsory acquisition was $2 for each unit. The benefit of distributions undeclared at the time of a compulsory acquisition notice accrues to an acquirer under s 664A of the Act : Capricorn at [92]. The question in that case was whether at settlement the acquirer was liable to set off against the cash sum of $2 the amount of benefit by way of distributions paid to the offerees between the date of the notice of compulsory acquisition and settlement. Neither Brierley nor Capricorn , in my opinion, assists the construction of "cash sum". 60 I have had regard to the provisions of s 664B(2) and the cases of Brierley and Capricorn relied upon by Mitsui, but for reasons which I have already explained, these do not inform the meaning of "cash sum" in s 664C(1)(a) of the Act. Rather, they are concerned with the amounts paid in due course for the securities. 63 It is not sufficient that at some indeterminate date in the future, if at all, a determinate amount of money may be calculated as the "cash sum" for the purpose of the Notice. This is a different matter from any statutory adjustment under s 664B(2) or equitable or contractual set offs to be applied to the cash amount offered in a notice of compulsory acquisition: Brierley and Capricorn.