mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bailey v Beagle Management Pty Limited [2001] FCA 185
Outcome: cited
the present case, Allphones put in train a formal dispute resolution process which involved negotiations with its disaffected franchisees and, if necessary, a formal mediation. In order to make that process worthwhile, at the time when the process commenced (viz on 29 August 2008), Allphones promised that it would provide relevant financial information to those parties with whom it was in dispute in order to facilitate those negotiations and that mediation. It was quite prepared to obtain and to provide to its franchisees an investigating accountant's report in respect of all of the critical matters in dispute. This was contemplated in the Notice of Dispute itself which, of course, was created and served approximately five or six weeks before the undertakings were given to the Court on 9 October 2008. A fair appreciation of the relevant events is that the two BDO reports were always intended to be part of the dispute resolution process and that Allphones had probably always intended to use them in support of contentions which it would make in the various Statements of Position served by it as to the quantum of the levies, charges, fines, bonuses, rebates and other payments in dispute. At common law, documents produced for the purposes of such negotiations attracted without prejudice privilege (see Rabin v Mendoza &amp; Co [1954] 1 All ER 247, [1954] 1 WLR 271 ; and Bailey v Beagle Management Pty Limited [2001] FCA 185 at [14] [16]).
Case: Brown v Federal Commissioner of Taxation (2002) 119 FCR 269
Outcome: cited
statements were referrable to the common law position. That position may have been extended by s 131 of the Evidence Act although there is a difference of opinion on this question emerging in the authorities. In this Court, in Brown v Federal Commissioner of Taxation (2002) 119 FCR 269 at [99], a Full Court expressed the tentative view that the expression "... in connection with an attempt to negotiate the settlement of a dispute ", as it appears in s 131 , appears to extend the scope of the common law privilege.
Case: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: cited
even if the reasoning in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 could sensibly be applied to documents protected by without prejudice privilege (which I doubt), I do not think it would assist the ACCC in the present case. The ACCC had a legitimate interest in the Allphones disputes with its franchisees as the relevant regulatory authority under the Act and for the purposes of the Franchising Code of Conduct. Allphones sought to involve the ACCC in those capacities in the dispute resolution process instigated by Allphones. In fact, the ACCC was keeping a close eye on that process. The disaffected franchisees were probably looking to the ACCC for protection. Given the promptness with which the ACCC raised its concerns about Allphones' conduct in relation to that dispute resolution process, I infer that, in the period from early September 2008 to at least January 2009, officers of the ACCC and/or its lawyers were in regular contact with franchisees and their legal representatives about the negotiations and foreshadowed mediation instigated by the Notice of Dispute. The copy of the first BDO report sent to Corrs on 26 September 2008 was sent in connection with Allphones' dispute with the eligible franchisees. It cannot be tendered in evidence because s 131(1) forbids its tender.
Case: Harman v Home Department State Secretary [1983] 1 AC 280
Outcome: cited
I understand proposed Order 1, the ACCC seeks leave to be released from the implied undertaking in respect of the documents listed in that proposed Order that may have been required of it in accordance with the principles in Harman v Home Department State Secretary [1983] 1 AC 280 at 304, 319, 320 and 321 as explained by the High Court in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 at [95] [97] (pp 154 155) and [105] [108] (pp 157 160).
Case: Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125
Outcome: cited
I understand proposed Order 1, the ACCC seeks leave to be released from the implied undertaking in respect of the documents listed in that proposed Order that may have been required of it in accordance with the principles in Harman v Home Department State Secretary [1983] 1 AC 280 at 304, 319, 320 and 321 as explained by the High Court in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 at [95] [97] (pp 154 155) and [105] [108] (pp 157 160).
Case: Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ; (2008) 247 ALR 781
Outcome: followed
Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ; (2008) 247 ALR 781 , Jacobson J said (at [72] [74]): Communications made "in connection with an attempt to negotiate a settlement" The statutory requirement that the communication be "in connection with an attempt to negotiate a settlement" reflects the language used by the High Court in Field : at 293. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations. The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Arnotts at 72 3. The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd v Yuill (1997) 42 NSWLR 225 at 226.
Case: Rabin v Mendoza &amp; Co [1954] 1 All ER 247, [1954] 1 WLR 271
Outcome: cited
the present case, Allphones put in train a formal dispute resolution process which involved negotiations with its disaffected franchisees and, if necessary, a formal mediation. In order to make that process worthwhile, at the time when the process commenced (viz on 29 August 2008), Allphones promised that it would provide relevant financial information to those parties with whom it was in dispute in order to facilitate those negotiations and that mediation. It was quite prepared to obtain and to provide to its franchisees an investigating accountant's report in respect of all of the critical matters in dispute. This was contemplated in the Notice of Dispute itself which, of course, was created and served approximately five or six weeks before the undertakings were given to the Court on 9 October 2008. A fair appreciation of the relevant events is that the two BDO reports were always intended to be part of the dispute resolution process and that Allphones had probably always intended to use them in support of contentions which it would make in the various Statements of Position served by it as to the quantum of the levies, charges, fines, bonuses, rebates and other payments in dispute. At common law, documents produced for the purposes of such negotiations attracted without prejudice privilege (see Rabin v Mendoza &amp; Co [1954] 1 All ER 247, [1954] 1 WLR 271 ; and Bailey v Beagle Management Pty Limited [2001] FCA 185 at [14] [16]).
Case: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 ; (2003) 130 FCR 569
Outcome: cited
original of the first BDO report is presumably in the possession of Allphones. The original may be a business record of Allphones or, perhaps, of BDO, although I doubt that this is so. For reasons which I will explain, I do not need to decide this point for present purposes (see Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 ; (2003) 130 FCR 569 at [9] [21] (pp 571-573) for a discussion of some of the relevant issues). In my view, the original of the report is not admissible in evidence because the ACCC is prevented from seeking to tender it by s 131(1) of the Evidence Act . Section 131(1) of the Evidence Act is in the following terms: 131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
Case: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581
Outcome: followed
Section 723(3) does not, in terms, require the application for quotation to be made within the seven day period, and, of course, does not require that the securities be admitted to quotation within the three month period a matter for ASX. In Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 (" IAG ") I held that s 1322(4)(d) was nonetheless applicable to s 723(3)(a) (and to s 724(1)(b)(i)). For the reasons I gave in IAG, I again hold that I have power to make an order under s 1322(4)(d) to extend the seven day period referred to in 723(3)(a). 29 The position in relation to the three month period referred to in s 723(3)(b) may be thought to be less clear, but I reach the same conclusion as in relation to s 723(3)(a). It is true that it is a third party, ASX, not NuSep, that can choose to do or not to do the act referred to in s 723(3)(b) (admit the securities to quotation). Otherwise, however, the considerations that led me to conclude in IAG that s 1322(4)(d) was available in relation to s 723(3)(a) apply. In my opinion, the period of three months for the admission of the securities to quotation is as much as "a period for doing any act, matter or thing" within s 1322(4)(d) as is the period of seven days for the making of an application for the admission of the securities to quotation. 30 I turn now to the question of discretion.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
Order 52 r 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed 21 days from the date of judgment. In this case, this period ended on 15 November 2006. The application for an extension of time was filed on 21 November 2006. Pursuant to O 52 r 15(2), the time limit may be extended for 'special reasons'. In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said, at 195: "...the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 12 The applicant was present in Court on 25 October 2006, when the Federal Magistrate delivered his ex tempore reasons. An interpreter was also present to assist him. He has not adduced any evidence that might explain the delay in lodging his notice of appeal. He has not adduced any evidence of 'special reasons' that would satisfy the Court that an extension of time should be granted. 13 Further, as the first respondent submitted in written submissions, the proposed appeal would appear to have insufficient prospects of success to justify an extension of time. The applicant's draft notice of appeal claims that: (a) the decision of the Federal Magistrates Court involved an important exercise of power; (b) the Tribunal failed to provide the applicant with procedural fairness; and (c) he is entitled to a protection visa. The applicant's supporting affidavit rehearses the merits of his claim that he is entitled to a protection visa. I put the first claim to one side since it does not raise any ground for review. I also put the third ground aside since it invites an inquiry into the merits of the applicant's visa application that the Court is not at liberty to make. Neither of these grounds is capable of raising jurisdictional error. Only the applicant's second claim is capable of raising possible jurisdictional error.
Case: Barclays Bank v Tom [1922] 1 KB 221
Outcome: referred to
Before the various cross-respondents made their applications for leave to defend the applicants' claim against Landmark there was a good deal to be said in favour of the applicants' application. I acknowledge that even at that time there were reasons not to order separate trials. They were the matters often present in cases involving third party proceedings such as the desirability of having all parties bound by the decision between the plaintiff and the defendant so as to avoid the possibility of inconsistent findings, the additional cost and expense of two trials and the disadvantages to a defendant in two trials including possibly having to satisfy a judgment in favour of the plaintiff well before his claim against the third party is determined: Barclays Bank v Tom [1922] 1 KB 221; New World Oil and Developments Pty Limited v 163 Clarence Street Pty Limited [1995] FCA 138. However, in this case there were a number of weighty considerations on the other side. First, there was a large number of factual issues raised on the various cross-claims all of which at that point appeared to be of no relevance to the applicants' claim against Landmark. That was so because the proportionate liability provisions as properly construed appeared to be irrelevant because there was little to indicate at that time to suggest that any of the cross-respondents were directly liable to the applicants. Secondly, the applicants' claim against Landmark was a good deal more advanced in terms of being ready for trial than were any of the cross-claims. Thirdly, the applicants' difficult financial situation was relevant as was the fact that, if liability was established, that had been brought about by Landmark's conduct. 81 In addition, I refer to, without setting out, the observation of Scrutton LJ in Barclays Bank v Tom [1922] 1 KB 221 at 224.
Case: Duncan v Commissioner of Taxation (2006) 58 ACSR 555
Outcome: referred to
Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff's claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1 (" Helicopter Sales "). In that case, a third party's right to appeal against the plaintiff's judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff's claim, but had not made an order that the third party be bound by the decision on the plaintiff's claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party's right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff's claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff's claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton .
Case: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173
Outcome: referred to
Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff's claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1 (" Helicopter Sales "). In that case, a third party's right to appeal against the plaintiff's judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff's claim, but had not made an order that the third party be bound by the decision on the plaintiff's claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party's right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff's claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff's claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton .
Case: Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1
Outcome: referred to
Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff's claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd [1974] HCA 32 ; (1974) 132 CLR 1 (" Helicopter Sales "). In that case, a third party's right to appeal against the plaintiff's judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff's claim, but had not made an order that the third party be bound by the decision on the plaintiff's claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party's right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff's claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation [2004] NSWSC 985 ; (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff's claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton .
Case: New World Oil and Developments Pty Limited v 163 Clarence Street Pty [1995] FCA 138
Outcome: referred to
Before the various cross-respondents made their applications for leave to defend the applicants' claim against Landmark there was a good deal to be said in favour of the applicants' application. I acknowledge that even at that time there were reasons not to order separate trials. They were the matters often present in cases involving third party proceedings such as the desirability of having all parties bound by the decision between the plaintiff and the defendant so as to avoid the possibility of inconsistent findings, the additional cost and expense of two trials and the disadvantages to a defendant in two trials including possibly having to satisfy a judgment in favour of the plaintiff well before his claim against the third party is determined: Barclays Bank v Tom [1922] 1 KB 221; New World Oil and Developments Pty Limited v 163 Clarence Street Pty Limited [1995] FCA 138. However, in this case there were a number of weighty considerations on the other side. First, there was a large number of factual issues raised on the various cross-claims all of which at that point appeared to be of no relevance to the applicants' claim against Landmark. That was so because the proportionate liability provisions as properly construed appeared to be irrelevant because there was little to indicate at that time to suggest that any of the cross-respondents were directly liable to the applicants. Secondly, the applicants' claim against Landmark was a good deal more advanced in terms of being ready for trial than were any of the cross-claims. Thirdly, the applicants' difficult financial situation was relevant as was the fact that, if liability was established, that had been brought about by Landmark's conduct.
Case: Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191
Outcome: related
On 9 February 2007 I ordered that: "1. The amended notice of appeal be struck out. .2. The proceedings be dismissed. 3. The appellant pay the costs of and associated with this appeal, including costs of all motions." ( Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191.) Those orders were entered on 23 February 2007 and served on Mr Dunstan under cover of a letter dated 26 February 2007. 2 On 12 March 2007 Mr Dunstan filed a notice of motion seeking the following orders: "1. The decision on 9/2/2007 of Justice Gyles is set aside. 2. Leave is granted for the filing of a Notice of Appeal in ACD 4 of 2006. 3. Other orders as the Courts deems fit." A further draft amended notice of appeal was provided with an affidavit affirmed on 8 March 2007. 3 That motion came on for hearing on 10 April last. It was submitted for all respondents (apart from the first respondent, which submitted) that the motion was incompetent as there is no power to recall the entered order. Having heard from the solicitors for the respondents, I adjourned the matter until 31 May 2007 in order that the respondents could file any supplementary submissions and that Mr Dunstan could give consideration to the points that had been raised. He was to file an outline of submissions in answer. That occurred, together with the filing of yet another affidavit. Mr Dunstan seeks to raise matters in relation to discovery in preparation for the hearing at first instance. The affidavit also enlarges upon the difficulties that he has had in prison connected with the preparation of his case, a topic which was dealt with at some length in his first affidavit filed in support of this motion.