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Reviews of judgments


Every Issue

Cite as: (2008) 82(4) LIJ, p. 66


High Court Judgments

Cite as: (2008) 82(4) LIJ, p. 66

By Thomas Hurley

Constitutional law

Judicial power – whether Takeovers Panel exercises judicial power

In Attorney-General (Cth) v Alinta Ltd [2008] HCA 2 (31 January 2008) all members of the High Court agreed that the Takeovers Panel established under Ch 6 of the Corporations Act 2001 (Cth) did not exercise judicial power that under the Constitution Ch III was reserved for courts: Gleeson CJ; Gummow J; Kirby J; Hayne J; Heydon J; Crennan with Kiefel JJ. Appeal from decision of Full Court of the Federal Court allowed.

Criminal law

Evidence – leave to re-open

In Mahmood v WA [2008] HCA 1 (30 January 2008) M participated in a video re-enactment of the circumstances in which he found his wife deceased at their restaurant. Only part of this was played at his trial for her murder. The prosecutor commented that M’s demeanour in the video played was inconsistent with his claimed grief. The trial judge refused a defence application to tender the entire video that contained such expressions. M’s appeal to the WA Court of Appeal was dismissed but his appeal to the High Court allowed: Gleeson CJ, Gummow, Kirby, Kiefel JJ jointly; Hayne J sim. Consideration of when leave to re-open should be given.

Insolvency

Contract – whether IATA set-off

In International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 (6 February 2008) the High Court by majority concluded the provisions as to mutual set-off of debts between airlines achieved by the regulations under IATA contracts rendered IATA a creditor of the respondent airline to the exclusion of the individual airlines in the IATA arrangement: Gleeson CJ; Gummow, Hayne, Crennan, Kiefel JJ jointly; contra Kirby J. Appeal allowed. Declaration of primary judge that IATA a creditor restored.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at http://www.austlii.edu.au.

Federal Court Judgments

Cite as: (2008) 82(4) LIJ, p. 66

By Thomas Hurley

Administrative law

AD(JR) Act – when forming opinion a decision

In Dunstan v Orr [2008] FCA 31 (25 January 2008) Besanko J concluded that the decision of one officer to suspend another officer under the Public Service Act 1922 (Cth ) was a decision reviewable under the AD(JR) Act and it was not necessary to decide whether the formation and conveying of opinions by other officers to the one who made the decision were also decisions. He also concluded client legal privilege under s122(2) of the Evidence Act 1995 (Cth) was not lost where a privileged document was inadvertently disclosed.

Industrial law

Formal requirements of AWA

In Rilstone v BP Australia [2008] FCA 44 (1 February 2008) Branson J considered the effect of formal defects in an AWA that failed to comply with reg 8.11 of the Workplace Relations Regulations 2006 (Cth).

International arbitration

Whether dispute covered by arbitration clause

In Seeley International Pty Ltd v Electra Air Conditioning [2008] FCA 29 (29 January 2008) Mansfield J concluded the subject dispute was not covered by an arbitration agreement under the International Arbitration Act 1974 (Cth) and declined to stay the proceeding.

Migration

Tribunals – information – whether doubts about authenticity “information”

In NAWZ v MIC [2008] FCA 6 (24 January 2008) Madgwick J concluded doubts about the authenticity of documents were not “information” the RRT was obliged by s424A(1)(b) of the Migration Act to raise.

Migration

Visas – cancellation on character grounds

In Gilbert v MIC [2008] FCA 16 (23 January 2008) Marshall J concluded the Minister had cancelled the applicant’s absorbed person visa and not a temporary one. He also concluded the Minister did not err by taking into account outstanding charges.

Native title

Creation of interest – defective documents

In Murgha v Queensland [2008] FCA 33 (25 January 2008) Dowsett J considered whether he should make a declaration of native title in circumstances where the formal provisions of the Aboriginal and Torres Strait Islanders (Land Holdings) Act 1985 (Qld) had not been complied with and how any declaration should address the formal defects.

Statutory power

Whether investigation for an improper purpose

In Washington v Hadgkiss [2008] FCA 28 (29 January 2008) Marshall J declined to find that the investigation by the Australian Building and Construction Commissioner into alleged breaches of s816 of the Workplace Relations Act was for an improper purpose of establishing union officials were reluctant to cooperate with the ABCC.


THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at http://www.austlii.edu.au.

Supreme Court Judgments

Cite as: (2008) 82(4) LIJ, p. 67

By Greg Reinhardt

The implied undertaking on discovery

Cowell & Ors v British American Tobacco Australia Services Ltd & Ors [2007] VSCA 301 (unreported, 14 December 2007, No 8121/2001, 5288/2002, 5617/2007 and 5618/2007, Warren CJ, Chernov and Nettle JJA).

In the June 2003 LIJ (page 62), I wrote of the decision of the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43; [2003] 8 VR 571. In that case the plaintiff/respondent sought a declaration that all exhibits tendered in evidence on the plaintiff’s earlier strike out application were not subject to any implied undertaking by the plaintiff or her solicitors. Alternatively, the plaintiff sought a declaration that she be released from the implied undertaking. The US Department of Justice and the Australian Competition and Consumer Commission had sought access to the exhibits tendered in the earlier proceeding.

In that case, the Court of Appeal (Phillips, Batt and Buchanan JJA) ordered that documents admitted into evidence in the earlier litigation were and remained subject to an implied Harman undertaking1 (that prohibited the plaintiff and Slater & Gordon from using the documents for any “collateral or ulterior purpose”). The Court also ordered that some of the documents referred to during the trial were privileged and protected from disclosure.

In that case, the Court of Appeal (Phillips, Batt and Buchanan JJA) ordered that documents admitted into evidence in the earlier litigation were and remained subject to an implied Harman undertaking[1] (that prohibited the plaintiff and Slater & Gordon from using the documents for any “collateral or ulterior purpose”). The Court also ordered that some of the documents referred to during the trial were privileged and protected from disclosure.

Subsequently, in or about September 2006, a former partner of Clayton Utz, the solicitors who had acted on behalf of British American Tobacco Australia Services Ltd (BATAS) in the earlier litigation, released documents generated internally in that firm to Slater and Gordon Pty Ltd, the solicitors for Mrs Cowell (the Clayton Utz documents).

Proceedings were brought in NSW by BATAS and an associated company BATAL against Slater and Gordon Pty Ltd and others seeking orders restraining the use of the Clayton Utz documents. An order was made by Brereton J in that state restraining the defendants from using the Clayton Utz documents. It was claimed that the Clayton Utz documents included confidential information and privileged documents held by Clayton Utz in their capacity as solicitors for both companies.

The NSW proceedings were transferred to Victoria pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The defendants to the transferred NSW proceedings sought orders from Byrne J releasing them from the Harman undertaking so as to use the documents produced in the earlier litigation to defend the transferred NSW proceedings. Byrne J gave leave in relation to a number of the documents subject to the Harman undertaking without prejudice to questions of privilege, confidentiality or relevance. Brereton J’s order was varied accordingly.

BATAS and BATAL sought leave to appeal.

It was argued for the applicants that the Court should restrain the use of confidential information obtained improperly. The Court of Appeal referred to the authorities including Seager v Copydex Ltd [1967] 1 WLR 923, 931, Lord Denning MR. The Court was of the view, however, that the position taken by BATAS was “artificial and inimical to the proper administration of justice”. [19] The applicants for leave to appeal had sought to justify their claim on the basis in effect that it was appropriate for one of them to assert a claim for confidentiality on behalf of the other.

The Court said:

“It may be accepted that, as was submitted by BATAS, it is not inappropriate for it and BATAL to be represented by separate solicitors and to have commenced separate proceedings. Nevertheless, the two proceedings will be, or are very likely to be, heard at the same time so that the position in that regard will be no different in practical terms from one where the companies brought their respective claims in the one proceeding. Were such circumstances to prevail, it would have been artificial for BATAS to take no objection to the respondents using the BATAS information to defend the BATAS claim but object to it being used in the defence of the BATAL claim. We consider that his Honour was justified in taking the view that, in the circumstances, the objection by BATAS to its documents being used by the respondents in the BATAL proceeding would ‘not serve the interests of justice’. To recognise this is not to subject the doctrine of legal professional privilege, or the law pertaining to confidential information, to a perceived, higher, public interest. Rather, it is the recognition that to permit in the present circumstances BATAS to pick and choose which documents could be used by the respondents in their defences would run counter to the proper administration of justice”. [19]

The Court was not satisfied that the applicants would suffer prejudice if relief was refused. [20]

With regard to the Harman undertaking, the Court noted that this rests on the principle that the use of the compulsory processes of the Court to assist the conduct of litigation is “balanced by the need to ensure that the adverse effects of any intrusion should not extend any further than is absolutely necessary”. [47]

The Court agreed with Byrne J that special circumstances existed sufficient to warrant the modification of the undertaking to permit the documents to be used, that is to resist the claims of BATAS and BATAL. [39] His Honour had made orders sufficient to safeguard any claim to legal professional privilege which might be maintained by the applicants.

Leave to appeal was refused.


PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at http://www.austlii.edu.au/databases.html.


[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.

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