case_text: In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 (' Three Rivers' ), the privilege claim arose in the context of an inquiry by Bingham LJ that followed the collapse of the Bank of Credit and Commerce International SA ('BCCI') in July 1991. The focus of the inquiry was the supervision of BCCI by the Bank of England. Freshfields were retained by the Bank to advise generally on all dealings of the Bank, its officials and employees with the inquiry. Freshfields retained counsel to assist in the process. Both Freshfields and counsel gave advice as to the preparation and presentation of the Bank's evidence to the inquiry and as to the submissions that should be made to the inquiry on the Bank's behalf. The Bank claimed legal advice privilege over documents which the trial judge summarised as having been 'generated for the purpose of providing information to the Bank's legal advisers to enable them to prepare submissions and/or to advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from the inquiry': see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWHC 2730 (Comm). It appears that insofar as these documents were at issue in the House of Lords in Three Rivers , they all related to the content of the Bank's 'overarching statement' (the statement of its case) to the inquiry: see at 641 [6] and 683 [120]. The Bank did not rely upon the litigation limb of legal professional privilege because the inquiry was not an adversarial proceeding: see the House of Lords' decision in In re L (a minor) (Police Investigation: Privilege) [1997] 1 AC 16 (' Re L ') which I discuss later in these reasons. 90 The Court of Appeal (see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] QB 916) held that legal advice privilege was restricted to material constituting or recording communications between clients and lawyers seeking or giving advice about the clients' legal rights and obligations. It accepted a contention that advice as to how the Bank should present its case to the inquiry, so as to lead to a conclusion as favourable to the Bank as possible, did not qualify for privilege. 100 Having regard to the forgoing authorities, I accept that legal advice is not confined to telling the client the law but includes professional legal advice as to what should prudently and sensibly be done in the relevant legal context. Furthermore, in view of the House of Lords' decision in Three Rivers , I also accept that legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry. 101 There are, however, two additional points to be made. First, to qualify as privileged, the lawyer's advice must satisfy the description of professional advice given by a lawyer in his or her capacity as such: see NRG at 982 [g]-[j]; Three Rivers at 651 [38] and 658 [59]-[60]. The same requirement exists in the United States: see JH Wigmore, Evidence in Trials at Common Law , vol 8, rev J McNaughton, Little Brown & Company, 1961 (1981) at s 2292; and Evans v City of Chicago 231 FRD 302 (ND Ill 2005). Secondly, communications for the purpose of obtaining and giving legal advice in the sense discussed in Balabel and the other cases mentioned above must satisfy the dominant purpose test if they are to attract legal professional privilege. 124 As to the ultimate purpose of Exhibit 665, AWB submitted that it was created for the purposes of the Inquiry and its ultimate purpose was to enhance AWB's prospects in the Inquiry. This does not establish a dominant purpose of obtaining legal advice. Three Rivers is distinguishable: it proceeded on the footing that all of the documents at issue were brought into existence for the dominant purpose of seeking Freshfields' advice about the Bank's 'overarching statement' of its case to the inquiry: see 642-643, 644, 662-664 and 667. The documents were not privileged merely because they related to the preparation of the Bank's overarching statement. 125 If and to the extent that the ultimate purpose of the statement of contrition is relevant, it would tell against the application of privilege. On the evidence before me, I consider that the incorporation of a statement of contrition into Mr Lindberg's evidence to the Inquiry was intended to be a public relations exercise addressing the reputational damage that AWB had suffered, and was likely to continue to suffer, as a result of the Inquiry. But the view I take is that these references to 'ultimate purpose' tend to confuse the purpose of possible future evidence to the Inquiry with the purpose and intended use of the draft statement that constituted Exhibit 665. 126 Lastly, AWB submitted that the immediate purpose, the intermediate purpose and the ultimate purpose could be conflated into the single purpose of 'the preparation of a document in consultation with legal advisers for the purpose of use in this legal context', that is to say in the context of the Inquiry. In my opinion, the same deficiencies attend this formulation and it does not advance the claim for legal advice privilege. 132 The principles that emerge from these cases operate to protect privileged communications against the risk that they will be disclosed by secondary evidence: see Tomlinson J in Three Rivers [2002] EWHC 2730 (Comm) at [3]. The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. To adapt the language used by Gummow J in Propend and Anderson J in Dalleagles , the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication. 150 In Three Rivers , the Bank of England's conduct was the principal subject to be investigated by the Bingham Inquiry. The Bank did not contend that the documents in issue attracted litigation privilege, presumably because of the decision in Re L . 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell. 158 Legal professional privilege must be applied in a manner which is consistent with the policy reasons that justify its existence: see Pratt Holdings at 362 [18] and 367-368 [41]-[42] per Finn J, and 386 [105] per Stone J; and Three Rivers at 650 [35]. But this does not mean that the origins, and the distinctive scope and operation of the second limb of the privilege, are to be ignored. In my view, the authorities establish that the reason why litigation privilege has been recognised as a substantive rule of law and as a fundamental right, is that it operates to secure a fair civil or criminal trial within our adversarial system of justice. The rationale for litigation privilege does not support its extension to a commission of inquiry. 164 The extension of litigation privilege to a commission of inquiry is a very large step. It is not a step which I feel able to take, as a single judge, in the absence of supporting authority and in the face of the recent decision by the House of Lords in Three Rivers . 165 I also reject AWB's alternative submission that Exhibit 665 was brought into existence for the dominant purpose of being used in connection with litigation which might follow from the report of the Commissioner. It is unnecessary to debate whether potential future litigation of this kind, whether civil or criminal, is sufficiently in prospect or anticipated that it falls within the scope of the second limb of the privilege. Let that be assumed. The insurmountable difficulty I see is that, on the evidence, Exhibit 665 was not prepared so that it might be used in connection with future litigation of that kind. Rather it was prepared for possible use as part of Mr Lindberg's evidence to the Inquiry. This use falls outside the scope of the second limb of the privilege so long as a commission of inquiry is not relevantly regarded as litigation. 166 The conclusions I have reached on legal professional privilege are founded on this Court's jurisdiction under s 39B of the Judiciary Act and are based on the evidence adduced in this Court. In those circumstances, even assuming the jurisdiction to do so exists under the ADJR Act, it would be unnecessary and inappropriate for me to embark upon any review of the Commissioner's ruling on privilege.


case_outcome: considered

case_text: In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 (' Three Rivers' ), the privilege claim arose in the context of an inquiry by Bingham LJ that followed the collapse of the Bank of Credit and Commerce International SA ('BCCI') in July 1991. The focus of the inquiry was the supervision of BCCI by the Bank of England. Freshfields were retained by the Bank to advise generally on all dealings of the Bank, its officials and employees with the inquiry. Freshfields retained counsel to assist in the process. Both Freshfields and counsel gave advice as to the preparation and presentation of the Bank's evidence to the inquiry and as to the submissions that should be made to the inquiry on the Bank's behalf. The Bank claimed legal advice privilege over documents which the trial judge summarised as having been 'generated for the purpose of providing information to the Bank's legal advisers to enable them to prepare submissions and/or to advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from the inquiry': see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWHC 2730 (Comm). It appears that insofar as these documents were at issue in the House of Lords in Three Rivers , they all related to the content of the Bank's 'overarching statement' (the statement of its case) to the inquiry: see at 641 [6] and 683 [120]. The Bank did not rely upon the litigation limb of legal professional privilege because the inquiry was not an adversarial proceeding: see the House of Lords' decision in In re L (a minor) (Police Investigation: Privilege) [1997] 1 AC 16 (' Re L ') which I discuss later in these reasons.


case_text: In Australia, in Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 (' Dalleagles' ), Anderson J rejected the argument that legal advice privilege only extended to what is literally either legal advice or a request for legal advice, and arrived at much the same position as Taylor LJ enunciated in Balabel . At 332-333, Anderson J said: 'I do not think the authorities provide justification for concluding that the doctrine of legal professional privilege as applying to non-curial communications between solicitor and client has been refined to the extent submitted by counsel for the defendants, which would require professional communications to be excluded from the protection of privilege unless expressed as advice simpliciter or as a request for such advice or unless forming part of a communication expressed in that way. But anyway, I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client's interests in the transaction whether expressly requested or not. Two cases in this Court illustrating that rule are Watts v Public Trustee (WA) [1980] WAR 97 and Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363: see also Macpherson v Kevin J Prunty & Associates [1983] 1 VR 573. It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving and receiving advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.' Anderson J went on to say that there are limits to the application of this principle, including the fact that the material in question must have been created for the purpose of fulfilling the solicitor's professional engagement: at 334. 98 In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151 (' DSE' ), Allsop J followed Dalleagles and Balabel , and said that he saw no difference of substance between them: at 173 [71]. But Allsop J made it clear that he did not consider that these cases extended legal professional privilege beyond legal advice (at 165 [45]): 'I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework" (Taylor LJ in Balabel at 330). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context.' The last sentence in this passage refers to the statement by Colman J in NRG at 983 that a solicitor's professional duty or function not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought. 99 Allsop J's judgment contains an extensive review of the cases which have referred to, and applied, the reasoning of Taylor J in Balabel . They include Saunders , in which French J said that the principle applied by Anderson J in Dalleagles extends to materials brought into existence by the client in order to communicate with the solicitor for purposes which would attract privilege: at 472. In Wenkart v Australian Federal Police (unreported, Branson J, 11 November 1986) (' Wenkart' ), Branson J cited Dalleagles for the proposition that 'professional discourse in a professional capacity, with reference to transactions covered by a retainer to provide legal advice, will be regarded as prima facie for the purpose of giving and receiving advice'. 128 Anderson J explained the scope of this protection and the reasons for it in Dalleagles at 333-334: 'What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication: see Attorney-General (NT) v Maurice , per Dawson J (at 496). Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protection is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity ( Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared. Of course, there are limits and these have often been stated. The material must have been created solely for the purpose of fulfilling the engagement. The material must be confidential. No protection can extend to agreements in their final form intended to constitute the actual transaction between the parties or to records made for the purpose of evidencing an actual transaction, or to letters sent or to forms lodged at public offices or to pleadings filed in courts. This is because legal professional privilege exists to secure confidentiality and such material is no longer confidential.' 132 The principles that emerge from these cases operate to protect privileged communications against the risk that they will be disclosed by secondary evidence: see Tomlinson J in Three Rivers [2002] EWHC 2730 (Comm) at [3]. The question whether privileged communications will be disclosed by virtue of the disclosure of another document, such as a draft pleading, draft agreement or draft witness statement, raises a question of objective fact that depends on what the other document actually states or conveys, either explicitly or as a matter of reasonable inference. To adapt the language used by Gummow J in Propend and Anderson J in Dalleagles , the question is whether the disclosure of the document in question will directly reveal, or allow its reader to infer, the actual content or substance of a privileged communication. 133 There is, of course, a difference between explicit disclosure and disclosure by inference. Inferences are rarely certain. In my opinion, what Gummow J and Anderson J each had in mind was that the document in question would support an inference of fact as to the content or substance of a privileged communication; but the inference of fact must have a definite and reasonable foundation in the contents of the document. It would not be sufficient that the document as a whole, or particular statements within it, cause a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice. I do not think that this is the kind of tendency that Anderson J had in mind in Dalleagles when his Honour said that the true basis for extending privilege to this class of documents was not so much that they were themselves advice or communications, but because they will, if disclosed, reveal or tend to reveal, the content of privileged communications.


case_text: In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151 (' DSE' ), Allsop J followed Dalleagles and Balabel , and said that he saw no difference of substance between them: at 173 [71]. But Allsop J made it clear that he did not consider that these cases extended legal professional privilege beyond legal advice (at 165 [45]): 'I do not read the reasons of Taylor LJ as extending the privilege beyond legal advice. The reasoning of Taylor LJ was clearly directed to the privilege being so limited. What legal advice is, however, goes beyond formal advice as to the law. This recognition does not see the privilege extend to pure commercial advice. In any given circumstance, however, it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the "advice as to what should prudently and sensibly be done in the relevant legal framework" (Taylor LJ in Balabel at 330). That is how I read this last cited paragraph of Colman J: not extending the privilege beyond legal advice to commercial advice, but as recognising the form and nature of advice in a practical day to day context.' The last sentence in this passage refers to the statement by Colman J in NRG at 983 that a solicitor's professional duty or function not infrequently relates to the commercial wisdom of entering into a given transaction in relation to which legal advice is also sought. 130 This line of authorities was canvassed by Allsop J in DSE, and I have gained assistance from several of the cases he discusses. In Bank of Nova Scotia v Hellenic Mutual War Risk Association (Bermuda) Ltd [1992] 2 Lloyd's Rep 540 ( 'The Good Luck' ), Saville J said at 540: 'In my view if a lawyer-client communication falls within the principles set out in Lord Justice Taylor's judgment (that is to say, is covered by legal professional privilege) then internal documents or parts of documents of the client (or indeed the lawyer) reproducing or otherwise revealing those communications are also covered by the same privilege, whatever the purpose or motive (short of fraud) for which the document comes into existence. The principle justifying legal professional privilege is (as Lord Justice Taylor pointed out) that a client should be able to obtain legal advice in confidence.' See also Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 (' The Sagheera' ) at 171.


case_outcome: cited

case_text: In FCT v Pratt Holdings , Kenny J observed at 278 [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions. Kenny J added that the evidence of the intention of the document's maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 (' GSA Industries' ) at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company (1992) 36 FCR 557 at 568-569 per Gummow J; and Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at 328 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that lead to the creation of the document and its subsequent communication. 111 In the usual case, the question will be whether the requisite dominant purpose existed at the time the document was brought into existence. In some cases, however, intentions may shift between the time when the document was commissioned or created or communicated: see GSA Industries at 153-154 [29]-[34]; and Esso at 77 per McHugh J. In GSA Industries , Holmes J observed at 154 [34] that, on the basis that the communication and not the document is the subject of privilege, it is arguable that a time later than the creation of the document may be relevant. This kind of difficulty does not arise in the present case. It is not suggested by either party that Mr Lindberg's intentions, or those of any other party relevant to the creation or communication of Exhibit 665, changed between the time when Mr Lindberg drafted the statement of contrition and the time when it was communicated by email to those who had participated in the telephone conference of 21 December 2005.


case_text: As an adjunct to the first limb of the privilege, protection against disclosure has been extended to documents that record confidential legal advice or confidential legal work. Examples commonly given include legal research memoranda, draft pleadings, summaries of argument and draft agreements: see Daniels at 563 [44] per McHugh J; Propend at 550 per McHugh J and at 569 per Gummow J; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 (' Maurice' ) at 496 per Dawson J; Sterling [1978] 36 FLR 244 at 246 per Lockhart J; Mostyn v West Mostyn Coal Co (1876) 34 LT 531; and Packer v Deputy Commissioner of Taxation (Qld) [1984] 1 Qd R 275 (' Packer' ) at 284-285. 128 Anderson J explained the scope of this protection and the reasons for it in Dalleagles at 333-334: 'What is protected, of course, is that which is communicated between solicitor and client. It is the communication that is privileged. But this is not to say that material that is not literally a communication or manifestly the record of a communication is never protected. There are many instances of protection being extended to such material. The examples of the draft letter that never leaves the solicitor's office, the draft agreement and the draft statement of claim have already been referred to. The reason why such material is protected is often stated to be that disclosure of it will, or will tend to, reveal the privileged communication: see Attorney-General (NT) v Maurice , per Dawson J (at 496). Thus a note made by a solicitor of a conference with his client will be privileged in so far as it is a record of the communication from the client (that communication being privileged) but also in so far as it might contain notes of the solicitor's own thoughts in regard to the matters communicated to him. Protection is afforded in the latter case on the ground that disclosure of that material might tend to reveal what had been communicated to the solicitor. There is much in the cases to support the view that this is the true basis upon which draft agreements, draft letters, draft pleadings and the like have long been accepted as privileged; that it is not so much because they are themselves "advice" or "communication" but because they will, if disclosed, reveal, or tend to reveal, the content of privileged communications. Material created by the solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity ( Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of the communication in response to which it had been prepared. Of course, there are limits and these have often been stated. The material must have been created solely for the purpose of fulfilling the engagement. The material must be confidential. No protection can extend to agreements in their final form intended to constitute the actual transaction between the parties or to records made for the purpose of evidencing an actual transaction, or to letters sent or to forms lodged at public offices or to pleadings filed in courts. This is because legal professional privilege exists to secure confidentiality and such material is no longer confidential.' 134 The application of the principle in this way is, I think, supported by Dawson J's observations in Maurice at 496-497: 'Before it emerges in its final form, successive drafts of a claim book may be privileged but this is not because of any privilege attaching to the final product. Draft pleadings in an action may be privileged, but I have never heard it suggested that a statement of claim or a defence or a reply is privileged so that the privilege is waived when it is filed or delivered to the other side. The reason why the draft may be privileged before the document is completed was early explained in Walsham v Stainton , upon the basis that, although after a pleading has been filed it becomes publici juris, the drafts "might disclose the precise character of confidential communications with the solicitor, by showing the alterations made from time to time". In the same way a letter to the other side in litigation which is drafted in a solicitor's office may be privileged before it is sent because it may reveal confidential communications between the solicitor and his client. Once it is sent, however, it ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it. When the claim book in this case reached final form or, at all events, when it was put to the use for which it was intended, it was not a confidential communication and not a privileged document. Legal professional privilege exists to secure confidentiality in communications between a legal adviser and his client but it can have no application in relation to a document the purpose of which is to communicate information to others. Of course, what is contained in such a document may reveal some confidential communication between a legal adviser and his client, but if it does do so and so waives privilege, the waiver is of the privilege in the anterior communication and not in the document itself. Thus, if in a pleading the contents of a privileged communication are set out then the privilege attaching to that communication may be waived by the pleading. But for this to happen the content of the communication itself must be revealed. The mere reference to the occasion, such as a conversation or a letter, without reference to its content will not constitute a waiver of the privilege: Buttes Oil Co v Hammer [No 3] ; Roberts v Oppenheim .' See also Gibbs CJ at 481, Mason and Brennan JJ at 488 and Deane J at 493. 135 It is logical to apply the principle in a way that matches the way in which the doctrine of waiver is applied. The issue in Maurice was whether the Aboriginal claimants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) had waived legal professional privilege in the source materials used to prepare their claim book, as a result of having tendered the claim book in evidence. The claim book did not specifically mention, or quote from, any of the source documents. The High Court held that privilege had not been waived in the source documents: see Gibbs CJ at 481, Mason and Brennan JJ at 487-488, Deane J at 493 and Dawson J at 497-499. In the course of his judgment, Gibbs CJ pointed out that privilege in respect of a document is not waived by the mere reference to that document in pleadings or in an affidavit, although the position will be different if the document is reproduced in full: at 481. Mason and Brennan JJ referred with approval at 488 to the following passage from JH Wigmore , Evidence in Trials at Common Law , vol 8, par 2327 at p 36: '[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.' Deane J gave a more extended explanation of the way in which the doctrine of waiver should be applied (at 493): 'If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that considerations of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication: cf Buttes Gas and Oil Co v Hammer [No 3] . Where, however, he does no more than make use of privileged material (eg legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.' 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell.


case_text: In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ), the Full Court (Tamberlin, Emmett and Gyles JJ) held that legal representatives of the Australian Customs Service had waived privilege in legal advice by stating openly that they had given advice to Customs that a particular regulation did not prohibit public comment by an officer on matters of public administration. After referring to numerous authorities, Gyles J stated at 119 [65]: 'The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.' Tamberlin J found that the disclosure expressed the substance of the advice that had been given and consequently it would be inconsistent and unfair to now seek to maintain privilege in respect of the relevant parts of the advice. His Honour continued at 104 [6]: 'It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.' Tamberlin J referred to authorities which drew a distinction between a mere reference to the existence of legal advice which did not amount to a waiver, and cases in which the substance of the advice had been disclosed: see Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 and Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377. These cases arose in the context of s 122(2) of the Evidence Act 1995 (Cth), which expressly refers to a loss of client legal privilege consequent upon the disclosure of 'the substance of the evidence'.


case_text: Bennett has been followed by Sundberg J in Rio Tinto Limited v Commissioner of Taxation (2005) 224 ALR 299 at 312-313 [49]-[53], and Sackville J in Seven Network Limited v News Limited (No 12) [2006] FCA 348: see also Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425.


case_title: Seven Network Limited v News Limited (No 12) [2006] FCA 348


case_text: In Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58, Tamberlin J at 67-68 held that the disclosure of memoranda of fees, backsheets to counsel and counsel's fee slips did not amount to an implied waiver of privilege in the underlying documents. This was because the relevant memoranda etc did not disclose the nature and content of privileged material; they simply recorded in outline form the work which had been undertaken without disclosing the content of privileged communications, advices, briefs or conferences: see also Packer at 282; and Temwood Holdings Pty Ltd v Western Australian Planning Commission [2003] WASCA 112 at [20] - [25] . 140 I have carefully read, and re-read, Exhibit 665 with these legal principles in mind. 141 I have also taken into account all of the evidence concerning the links between Mr Zwier's legal advice and the subsequent drafting of Exhibit 665 by Mr Lindberg, including Mr Lindberg's evidence that his drafting of Exhibit 665 was based very closely on the oral and written advice he had received from Mr Zwier. Mr Zwier's affidavit of 5 April 2006 contains the statement that, having read Exhibit 665, he can say that it incorporates aspects of the legal advice which he had given. In his oral evidence Mr Zwier explained to some extent the factual basis for this statement. He said that he saw in Exhibit 665, in substantive respects, some reflection of the advice he had given to Mr Lindberg. In particular, he said that he had advised that particular subject matters should be included in the draft statement and they had been included.


case_text: AWB submitted that the policy considerations that attract privilege for documents that are brought into existence for the dominant purpose of providing legal services in connection with litigation apply with equal force to documents that are brought into existence for the dominant purpose of preparing and submitting evidence to the Inquiry. More specifically, it submitted that the broad rationale adopted by the High Court in Carter v Northmore Hale Davy & Leake [1995] HCA 33 ; (1995) 183 CLR 121 ( 'Carter' ) that underpins both limbs of legal professional privilege, namely that it is 'a practical guarantee of fundamental, constitutional, or human rights... and a corollary of the rule of law' (at 161 per McHugh J) supports the extension of the privilege beyond adversarial litigation to the conduct of this particular Inquiry, at least insofar as it affects AWB and its employees. 156 In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell.


case_text: In Carter at 160-161, McHugh J said that explanations of the rationale that have been put forward in terms of the proper functioning of the legal system or the perfect administration of justice take too little account of the fact that the privilege protects communications that seek or give legal advice in cases where no litigation is pending or contemplated. His Honour therefore expressed the rationale for the privilege more broadly: 'Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is 'a practical guarantee of fundamental, constitutional or human rights'. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.' See also Brennan J in Carter at 127; Baker at 94-95, 118 and 130; Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 (' Waterford' ) at 64; Maurice at 487; and Three Rivers at 677 [C] per Lord Carswell. 160 AWB also relied upon the statement by Dawson J in Waterford at 101 that: 'The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege.' 161 In my opinion, it is one thing to extend litigation privilege to adversarial proceedings before the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is vested with statutory authority to determine issues with legally binding consequences. A Royal Commission is not in that position. A Commissioner simply carries out investigations, determines the facts and prepares a report and recommendations. A Commission does not finally determine any rights or obligations. 162 It must also be recognised that legal advice privilege applies in its full extent to legal work undertaken in connection with the Inquiry. Provided the dominant purpose test is satisfied, legal advice provided in connection with the preparation of evidence for possible use at the Inquiry will attract privilege. In the context of the provision of legal advice and the preparation of evidence for a commission of inquiry, the question must be asked whether any communications, falling within the margin between legal advice privilege which is available, and litigation privilege which historically has not been available, justifies the extension of litigation privilege beyond adversarial court proceedings so as to include a commission of inquiry. The location and retention of witnesses, expert or otherwise, is really an adjunct of adversarial litigation and, in my view, does not warrant such an extension.


case_text: The judicial review application in this case is founded on ss 5 and 6 of the ADJR Act. The common feature of these provisions is that they attract jurisdiction only where there is 'a decision of an administrative character made, proposed to be made, or required to be made ... under an enactment...': see s 3(1) of the ADJR Act. Section 5 applies to the review of the decision itself whereas s 6 applies to conduct engaged in for the purpose of making such a decision. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (' Bond' ), the High Court held that a reviewable decision generally entails a decision which is final or operative and determinative, at least in the practical sense, of an issue falling for consideration; a conclusion reached as a step along the way in a course of reasoning to an ultimate decision will not ordinarily qualify as a reviewable decision: at 337 per Mason CJ (Brennan and Deane JJ agreeing). Further, to be reviewable under the ADJR Act, a decision must also be a substantive determination rather than a procedural one: at 337. 182 The other decisions that AWB seeks to review concern the Commissioner's construction of the RCA. In particular, AWB seeks to review the Commissioner's conclusion concerning the construction and operation of the 'reasonable excuse' provisions of s 3(4) and (5) of the RCA, and the Commissioner's conclusion that the RCA confers an ancillary or incidental power upon him to determine whether a claim of legal professional privilege has been established. Not only do these decisions or conclusions fall outside the scope of the ADJR Act because they are not given legal force or effect by the RCA; none of them amount to final and operative decisions that are amenable to judicial review. They are simply conclusions reached along the way by the Commissioner in the course of reasoning to his ultimate decision that legal professional privilege did not attach to Exhibit 665. As such, they are not decisions of an administrative character made under an enactment: see Bond at 337 per Mason CJ. 183 For the foregoing reasons, I decline to undertake a judicial review of the decisions or rulings made by the Commissioner. 184 From what appears above, it will be apparent that I reject AWB's claims for a declaration that Exhibit 665 is protected by legal professional privilege and for injunctions restraining the Commissioner from using or publishing Exhibit 665 and requiring that he return it to AWB. It remains for me to consider AWB's claim for declarations that the Commissioner does not have power to order the production of a privileged document or to determine whether a document is protected by legal professional privilege and should not determine such a claim.


case_text: In Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (' Tang '), the issue was whether a decision by Griffith University to exclude a post-graduate student from further participation in its PhD degree program was a decision under the Griffith University Act 1998 (Qld) ('University Act'). The excluded student sought judicial review under the Judicial Review Act 1991 (Qld) which is relevantly identical to the ADJR Act: see Tang at 105 [3] per Gleeson CJ, and 119 [49] per Gummow, Callinan and Heydon JJ. It was not disputed that the university's powers to formulate the terms and conditions of the applicant's PhD candidature, to decide to enter into a relationship with the applicant in respect of that candidature, and to decide to end it were conferred in general terms by the University Act. A majority of the Court, comprising Gleeson CJ, Gummow, Callinan and Heydon JJ, held that the decision was not reviewable because it was not a decision of an administrative character under an enactment. Kirby J dissented. 171 In their joint judgment, Gummow, Callinan and Heydon JJ said at 130-131 [89]: 'The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.' 172 Applying these principles, Gummow, Callinan and Heydon JJ concluded at 132-133 [96]: 'The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the [Judicial Review Act 1991]. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.' 173 Gleeson CJ reached the same conclusion. In his Honour's view, the critical consideration was that the university's decision to end the applicant's PhD candidature was not given legal force or effect by the University Act: at 112 [23] 174 In my opinion, the Commissioner's rulings that he has an ancillary or incidental power under the RCA to determine whether or not the claim for legal professional privilege was established, and that legal professional privilege does not attach to Exhibit 665, are not given legal force or effect by the RCA. It follows that these rulings are not amenable to the review under the ADJR Act.


case_text: The Commonwealth submitted that the RCA conferred power on the Commissioner, for practical and procedural reasons, to reach an opinion as to whether or not Exhibit 665 attracted legal professional privilege. This submission was founded on Re Adams and the Tax Agents' Board (1976) 7 ATR 87, in which Brennan J said at 89: 'An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court's judgment and not the administrative body's opinion which defines the extent of (as well as the constitutional support for) its statutory authority. ... An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board's function of forming an opinion upon the question. He said (at 618): "I do not mean to say that the Board may not, for the purpose of determining its own action, 'decide' in the sense of forming an opinion upon the meaning and application of the words 'coal mining industry'. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception".' Brennan J applied these principles in concluding that the Administrative Appeals Tribunal and the Tax Agents Board could express an opinion about the constitutional validity of a provision of the Income Tax Assessment Act 1936 (Cth), but neither body could make a decision on that question that produces any effect in point of law: at 91-92.


case_text: I was referred to a number of other authorities to similar effect. The issue in Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 was whether notices issued by the Deputy Commissioner of Taxation extended to documents which were the subject of legal professional privilege. Lockhart J said that any claim for privilege could be asserted and tested in the courts: at 200. Hill J said that at an appropriate time, which would generally be at the latest time for compliance with the notice, it would be incumbent upon the recipient of the notice to make a claim for privilege and, if that claim be rejected, to maintain the claim by an application to a court or by way of defence in a prosecution: at 217. There is no suggestion in the judgments in the Full Court that the Deputy Commissioner of Taxation was impliedly empowered by the legislation to determine the claim for privilege in a way that had any legally binding force or effect.


case_title: Buck v Comcare (1996) 66 FCR 359

case_text: In Buck v Comcare (1996) 66 FCR 359 (' Buck' ), Finn J refused to read a 'reasonable excuse provision' in federal legislation as if it were impliedly qualified by the words 'in the opinion of Comcare'. His Honour said at 362: 'I am, in effect, being asked to construe s 57(2) as if it were worded: "Where, in the opinion of Comcare, an employee refuses or fails, without reasonable excuse, to undergo ...". Cf the like implication sought in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601. The formula "without reasonable excuse" occurs commonly enough as a ground of exculpation in penal provisions of statutes: see, eg, Australian Securities Commission Act 1989 (Cth), s 63 and Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504; see also Broadbent v Fairbairn (unreported, Federal Court, Drummond J, 10 July 1995). In these instances the presence or absence of such an excuse is, properly, a matter for judicial determination. In contrast, though, there are instances of its use in legislation in circumstances where the determination required is given to an administrative agency or tribunal with the consequence that judicial supervision of that determination is a matter of judicial review: see, eg, Health Insurance Act 1973 (Cth) ss 23DZG(c) and 124FF (2) and Reddy v Medicare Participation and Review Committee (1994) 34 ALD 477.' Here, both parties submitted that the subsistence of legal professional privilege in Exhibit 665 and the existence of a reasonable excuse within the meaning of s 3(5) of the RCA were properly matters for judicial determination which could be undertaken without reviewing the Commissioner's rulings. 178 National Crime Authority v S (1991) 29 FCR 203 does not stand for any contrary proposition. It provides an example of the second type of legislation mentioned by Finn J in Buck. The case concerned the National Crime Authority Act 1984 (Cth) which specifically empowered the National Crime Authority to decide whether a claim for legal professional privilege was justified. The legislation attached legal force and effect to that determination, subject to a right to apply to the Federal Court for an order of review. Likewise, Brannigan v Davison [1997] AC 238 turned on its facts, and the special features of the legislation that was in issue.


case_text: National Crime Authority v S (1991) 29 FCR 203 does not stand for any contrary proposition. It provides an example of the second type of legislation mentioned by Finn J in Buck. The case concerned the National Crime Authority Act 1984 (Cth) which specifically empowered the National Crime Authority to decide whether a claim for legal professional privilege was justified. The legislation attached legal force and effect to that determination, subject to a right to apply to the Federal Court for an order of review. Likewise, Brannigan v Davison [1997] AC 238 turned on its facts, and the special features of the legislation that was in issue.


case_text: The Commonwealth submitted that the RCA conferred power on the Commissioner, for practical and procedural reasons, to reach an opinion as to whether or not Exhibit 665 attracted legal professional privilege. This submission was founded on Re Adams and the Tax Agents' Board (1976) 7 ATR 87, in which Brennan J said at 89: 'An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. It derives its powers and discretions from and in accordance with the law. It is the court's judgment and not the administrative body's opinion which defines the extent of (as well as the constitutional support for) its statutory authority. ... An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board's function of forming an opinion upon the question. He said (at 618): "I do not mean to say that the Board may not, for the purpose of determining its own action, 'decide' in the sense of forming an opinion upon the meaning and application of the words 'coal mining industry'. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception".' Brennan J applied these principles in concluding that the Administrative Appeals Tribunal and the Tax Agents Board could express an opinion about the constitutional validity of a provision of the Income Tax Assessment Act 1936 (Cth), but neither body could make a decision on that question that produces any effect in point of law: at 91-92. 185 Despite the widely formulated declarations sought by AWB, there was very little in dispute in this Court between AWB and the Commonwealth concerning the nature and extent of the Commissioner's powers under the RCA. In the end, it was essentially common ground between them that (to adapt the language used by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 at 618) the Commissioner had an administrative power or capacity, for the purpose of determining his own actions and procedures, to 'decide', in the sense of forming an opinion, that Exhibit 665 was required to be produced under the notice because it was not legally privileged. In this sense, the Commissioner had the power to accept or reject the claim for privilege that was made to him. I consider that the Commissioner's opinion or ruling had no binding force or effect in point of law, and it was open to either party to agitate the issue directly in declaratory proceedings in this Court without embarking upon any review of the Commissioner's decision. 186 The main area of contention between AWB and the Commonwealth related to two matters. One area that was in dispute before the Commissioner was whether the Commissioner had to defer to a bare claim of legal professional privilege over Exhibit 665. If AWB advanced any such argument in this Court, it did so very weakly. AWB accepted that the Commissioner could quite properly hear argument and evidence about, and could accept or reject, a claim of legal professional privilege in the exercise of administrative or executive power, subject to the qualification that his decision would not have any legally binding force or effect. The Commonwealth submitted that the Commissioner is not required to accept a bare assertion of privilege. It argued that there is no reason why, in order properly to discharge his functions and to determine the scope of his jurisdiction, the Commissioner should not require that a person making a privilege claim properly establish the claim before him by evidence and submissions. These submissions were not seriously disputed by AWB. 187 I do not doubt that the Commissioner can make a non-binding decision concerning a claim of legal professional privilege. It is obviously administratively convenient and practical that the legislation should be construed as giving him the implied authority to do so. The Commissioner might well accept that legal professional privilege applies to certain documents, thereby obviating the need for any application to be made to the Court. On the other hand, if the Commissioner rejects a claim to privilege, his ruling will crystallise a dispute and provide the foundation for either the Commissioner or the other person concerned to make an application to the Court for an appropriate declaration or injunction.


case_text: This Court has power to grant declaratory relief under s 21 of the Federal Court Act 1976 (Cth). In their joint judgment in Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ described the nature of a superior court's power to grant declaratory relief: 'It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".' The making of a declaration and the terms in which it should be framed are in the court's discretion: see Brennan J at 596; see also Mayfair Trading Pty Ltd v Drewey [1958] HCA 55 ; (1958) 101 CLR 428 at 454 per Dixon CJ; Tito v Waddell (No 2) [1977] Ch 106 at 259.


case_text: The courts have stressed that it is important that declaratory relief be aimed only at the resolution of real rather than theoretical questions: see Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-357 [47] - [49] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; CE Heath Casualty and General Insurance Ltd v Pyramid Building Society [1997] 2 VR 256 at 260-262 and 284-285; Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230 at 265. 192 I have concluded that it is inappropriate to grant declaratory relief in relation to the Commissioner's powers under the RCA. 193 The declarations claimed by AWB are expressed very broadly and do not reflect the issues that were litigated in this Court or are contrary to the conclusions I have reached. Leaving aside the Commonwealth's submission as to the Commissioner's limited powers of inspection, neither party contended that the Commissioner had power to order the production of a privileged document. The Commissioner did not purport to exercise any such power. It is therefore inappropriate to make the first declaration sought by AWB. The other declarations sought by AWB are inconsistent with my conclusions on the relevant issues.


case_outcome: discussed

case_text: In Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt "), there was a question whether an owner of goods "served" notice on the hirers of them as required by s 13 of the Hire Purchase Act 1959 (Qld) . The High Court had to consider s 42(1)(c) of that Act, which was a provision similar to s 109X of the Corporations Act , and s 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld) as it then was , which was similar to s 29(1) of the Acts Interpretation Act . The Court held (at 96-97) that the second limb of the Acts Interpretation Act provision is not enlivened where there is proof of non-delivery. The consequence, their Honours said, is that notwithstanding that service by post is permitted and the requirements for service by post are complied with, where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service. In other words, by reason of the expression "unless the contrary is proved", the company can, by proving that "delivery" did not occur, overcome the effect of the deemed service provision entirely. Their Honours observed (at 97): "It may be thought that there is an anomaly in such a result". 24 Their Honours considered, however, that "delivery may be different from receipt by the intended recipient", and that, provided delivery is not disproved (such as by return of the postal article to the sender undelivered), the mere fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post (at 97). In Fancourt itself, their Honours noted, there was no evidence of non-delivery, and it followed that service was deemed to have taken place at the time when the relevant letter or packet would have been delivered in the due course of the post. 25 The defendant submits that non-delivery is proved in the present case, apparently because: there is no receptacle for postal articles at Unit 3; there is an arrangement between the defendant and the Post Office for the diversion of mail addressed to Unit 3 to Box 590; if delivery to Box 590 had taken place, the only person who collected the mail from that box, Ms Mannile, would have collected the envelope containing the statutory demand and taken it to Unit 3; and she would there have handed the statutory demand to Mr Vane who, at the same time, would have "received" it. 26 Section 109X of the Corporations Act , and the first limb of s 29(1) of the Acts Interpretation Act are to the effect that by duly posting a statutory demand to a company's registered office, the sender, without more, "serves" it on the company. The first limb of s 29(1) has that effect because a "contrary intention" does not appear in s 109X or elsewhere and because that limb does not affect the operation of s 160(1) of the Evidence Act as it does not touch on the presumption as to time of receipt, which is the sole subject matter of s 160(1). 27 Commonly, as in the present case, the sender has no knowledge of the physical circumstances at the registered office or of any special arrangement between the company and the Post Office for the diversion of the company's mail to a Post Office box. There are strong policy reasons why any risk arising from the fact that there is no letter box or other facility for receipt of mail at the registered office or from such an arrangement should lie with the company. It is the company that chooses not to have such a facility, or to have as its registered office premises to which it is not practicable for mail to be delivered, or simply to make an arrangement with the Post Office for mail addressed to the company's registered office not to be delivered to that office but to be deposited in its Post Office box instead. 28 Section 109X of the Act and the first limb of s 29(1) of the Acts Interpretation Act reflect these policy considerations. 29 The fact remains, however, that s 160(1) of the Evidence Act (likewise the second limb of s 29(1) of the Acts Interpretation Act ) allows for the possibility of the company displacing the presumption as to time of receipt (and s 29(1) 's deemed time of service provision). The plaintiff did not adduce evidence directed to proving the time of service, but relied on the statutory presumption. I suggest that in this respect the plaintiff is in the same position as that of nearly all persons who wish to serve documents on a company by posting them to its registered office. 30 The defendant did not raise any point as to whether the time of service in this case is that provided for in s 160(1) of the Evidence Act or in the second limb of s 29(1) of the Acts Interpretation Act . In fact, subs (2) of s 29 of the Acts Interpretation Act has the effect that it is the "fourth working day" period specified in s 160(1) of the Evidence Act that applies, because, by reason of subs (2), s 29 is not permitted to affect the operation of s 160 of the Evidence Act . In any event, the defendant's submission is simply that the plaintiff is not in a position to rely on either statutory provision as to time because, on the evidence, the statutory demand was not delivered to Unit 3 at all. 31 In my view, the defendant has not adduced "evidence sufficient to raise doubt about the presumption" in terms of s 160(1) of the Evidence Act (or, a fortiori , "proved" the contrary of the deemed time of service provision of the Acts Interpretation Act ). 32 I do not know why Mr Vane did not receive the statutory demand. There are three possibilities as to where it went astray: between posting by Ms Taylor and arrival at Box 590; between collection from Box 590 and arrival at Unit 3; or within Unit 3. The defendant's evidence does not persuade me that the first or second possibility is more probable than the third, or that the evidence is sufficient to raise doubt about whether the third explanation is the right one.


case_text: Counsel for the parties referred me to several authorities on the statutory provisions to which I have referred, in factual contexts in which mail addressed to a company's registered office was deposited in its Post Office box rather than delivered by post to the registered office. These "diversion arrangement" cases were recently comprehensively reviewed by White J in the Supreme Court of New South Wales in Scope Data Systems Pty Ltd v David Goman as Representative of the partnership BDO Nelson Parkhill [2007] NSWSC 278. 37 In view of my conclusion that the evidence is not sufficient, in the light of the evidence of Ms Mannile's practice of collecting the mail from Box 590 and taking it to Unit 3, to raise doubt about the presumption under s 160(1) of the Evidence Act that the statutory demand was received at Unit 3 on Monday 4 December 2006, I need not discuss the question whether, and if so in what circumstances, an arrangement for the diversion by the Post Office of mail addressed to a company's registered office to a Post Office box can be relied on by a company to overcome the statutory presumption as to time of receipt contained in s 160(1) of the Evidence Act and the deemed time of service provision contained in the second limb of s 29(1) of the Acts Interpretation Act . 38 Before I conclude, I make the following observations concerning the state of evidence in this case. As noted earlier, no witness on either side was cross examined. The defendant did not dispute that the statutory demand was posted to Unit 3 as Ms Taylor deposed, but I would have expected the plaintiff to adduce more precise evidence than was led here of posting. I am left to infer on the basis of Ms Taylor's unchallenged affidavit evidence that she remembered on 15 January 2007 (when she made her affidavit) having attended a Post Office on November 28 2006 and posted the statutory demand there in an envelope addressed to Unit 3. Were there no business records of this posting? None were put in evidence. 39 Where, as here, delivery is put in issue, a plaintiff should adduce detailed evidence of the facts relied upon to prove posting. The evidence should include express evidence that the document was not returned to the sender undelivered. 40 The defendant's evidence was also slender but this may be excusable. In a small business, a record of incoming mail may be maintained. If not, the company simply suffers the disadvantage when a case such as the present one arises of not being able to prove a negative. Nonetheless, the present defendant's evidence might also, with benefit, have been more detailed. At least, the evidence should have addressed the question of the recording of mail collected from the Post Office and received at Unit 3, the opening and distribution of the mail at Unit 3, the number of staff there to whom mail was distributed, and Ms Mannile's state of recollection or lack of recollection of relevant events.


case_outcome: followed

case_text: In Re Wilson v Official Trustee in Bankruptcy [1999] FCA 1760 the applicants sought an annulment of their bankruptcies under s 153B of the Act . Sequestration orders had been made on the basis of a judgment debt obtained from the New South Wales District Court. The applicants claimed that the creditor was not entitled to judgment in the full amount of the debt because of certain payments earlier made. Emmett J dismissed the applications. He declined to follow Greenhill and held that s 41(5) "is concerned with a claim of a bankruptcy notice for an amount greater than is, in fact, [owed] under a judgment " (emphasis in original). His Honour explained his reasons for differing from Morling J as follows: "[39] A bankruptcy notice must require the debtor to pay the judgment debt, in accordance with the judgment. The pre-existing obligation, which the judgment is intended to enforce, will have merged in the new obligation created by the judgment see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 353-354. It may well be that there would be good grounds for setting aside a judgment which was entered for an excessive amount. Further, it may be that this Court, as a Court of Bankruptcy would go behind a judgement in order to determine whether there was, in fact, anything due. Following the entry of a judgment, however, the amount due by the judgment debtor to the judgment creditor, and the amount for which execution might issue, is the sum stated in the judgment. Where a bankruptcy notice claims that amount, it cannot be said that it claims an amount that exceeds the amount in fact due. By reason of the judgment itself, the amount of the judgment is due. [40] Upon an application to a court exercising jurisdiction in bankruptcy to set aside a bankruptcy notice, the court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced, and would not support a finding that there was, in truth, no debt at all see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589. That decision of a Full Court of this Court is binding upon me and, it appears to me, that it would preclude a Judge, on hearing a bankruptcy petition, to go behind the judgment if the only purpose for doing so would be to show that the amount of the judgment should be reduced, not to show that no amount was owing. It may be relevant, if the amount of the judgment should be reduced to an amount below the minimum amount that supports a petition. However, that is not the case here." 22 In Emerson the Full Court (presided over by Morling J) accepted that a bankruptcy notice may be invalid if the amount specified in the notice exceeds the amount in fact due. It held that the date on which the inquiry as to whether or not the amount specified in the notice is excessive was to be made as at the date of the issue of the notice. In that case the amount specified in the notice was an amount for which judgment had been obtained in the District Court in Queensland. After the bankruptcy notice had issued the Supreme Court allowed an appeal from the District Court's judgment and reduced the judgment sum by $5,400. The Court held that the notice claimed the amount of the judgment and did not, therefore, exceed the amount in fact due. The subsequent reduction of the amount of the judgment did not alter this position. The Court then dealt with the question of when it might be permissible for a Court of Bankruptcy to go behind a judgment on which a bankruptcy notice was founded. The Court said (at 587 588) that: "It is not open to doubt that a Court exercising jurisdiction in bankruptcy may, in an appropriate case, 'go behind' a judgment and inquire whether it was founded on a real debt: Corney v Brien ... . Such a Court, however, has no power to set aside a judgment but only to prevent the judgment creditor from having recourse to the provisions of the Bankruptcy Act ... As between the parties, the judgment remains unimpeached and maybe enforced accordingly by what ever means may otherwise be available. In the present case, there had been a full hearing before the District Court at which the appellants and the respondent appeared and were legally represented. All the issues were carefully examined and judicially determined. This is not a case, like many of the cases in this area of the law, where judgment was entered in default of appearance or defence. There may be circumstances which justify, in a particular case a review of the proceedings in another Court which, after a hearing, have resulted in the entry of judgment against a debtor ... For example, if an allegation is made that a judgment has been obtained by fraud, it may be proper for a Court exercising jurisdiction in bankruptcy to go behind the judgment to ascertain whether there is a real debt. But there is nothing in the facts of the present case which would have warranted this Court embarking on what would have amounted to a re-trial of the issues that had been determined after a contested hearing and which were the subject of an appeal to the Supreme Court of Queensland. That Court, not this Court, was the appropriate forum in which to review the correctness of the District Court judgment. The circumstance that the Supreme Court subsequently varied the judgment entered in the District Court, reducing it by the sum of $5,400, provides no support for the contention that this Court should have itself examined the correctness of the judgment. Nor, given the particular circumstances of this case, do any of the cases on which the appellants relied support the appellants' contention." 23 The appellants sought to distinguish Emerson on the ground that, in that case, the amount of the judgment debt was determined after a full hearing at which the parties were represented. In my view there is no reason, in principle, for not applying Emerson in the circumstances of the present case. This was not a case where the creditor had obtained a summary default judgment. Nor is it a case in which a tenable allegation that the judgment was fraudulently obtained is made. On the contrary, on their own case, the appellants agreed to sign and did sign consent orders under which they became liable to pay the sum appearing in the bankruptcy notices if, as happened, they failed to pay the nominated sum (and interest) by an agreed date. When this did not occur the consent orders were filed and judgment entered for that sum. The sum then became owing under a judgment of the District Court. The appellants did not, as they could have done, applied to the District Court to vary that judgment. There is no occasion for this Court to go behind the judgment and it should not do so.


case_text: A decision to refuse an application for the adjournment of a hearing is a discretionary decision which will not lightly be overruled on appeal: see Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625; House v R [1936] HCA 40 ; (1936) 55 CLR 499. An appeal court will only intervene if the discretion has not been exercised judicially "or where its exercise was based upon the wrong principle or resulted in gross injustice": Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.


case_outcome: applied

case_text: The principles which are to be applied, when applications are made for disqualification on the ground of bias in cases such as the present, were explained by the High Court in Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. The Court said (at 293-294) that: "That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." The joint judgment continued (at 300): "It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of a party, a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact."


case_text: In dealing with the disqualification application he said: "[3] The respondent made two preliminary instanter applications. First, the respondent applied for an order than I disqualify myself from hearing the application. The basis for such application was that I had earlier dismissed an application by the respondent to set aside the bankruptcy notice (see Perovich v Lane Rowin Pty Ltd [2007] FMCA 940). That decision is the subject of an appeal, but there is no stay of the judgment in force. In reliance on that fact it was submitted that the respondent perceives that I may be biased against her because of my previous adverse finding against her. I should add that I have not only decided that matter involving the respondent but other matters as well (Perovich v Neolido Holdings Pty Ltd [2007] FMCA 1105 ; Perovich v Traditional Values Management Ltd [2006] FMCA 1471 ; Perovich v Tesla Nominees Pty Ltd [2006] FMCA 1342). The respondent did not rely on my having heard those matters as founding her application that I disqualify myself." His Honour reviewed various authorities and concluded: "[12] The issue that I have previously decided is whether or not the bankruptcy notice overstated the amount due by the respondent to the applicant. That issue was decided on documentary and unchallenged evidence. No finding of credit was made against the respondent. It is presumably said that having found that the bankruptcy notice did not overstate the amount of the debt owed by the respondent to the applicant there is a reasonable apprehension that I cannot impartially decide the issue of whether the respondent is able to pay her debts, as required by s 52(2)(a) of the Act . In my view the two issues are quite separate and there is not a logical connection between my having previously determined the validity of the bankruptcy notice and the feared deviation from the course of deciding the case on its merits. I have not, because it has not previously arisen, expressed any view about a question of fact which is in issue on the present application, nor about the credit of a witness whose evidence is of significance on such a question of fact. His Honour held that in these circumstances authority mandated that he refuse to accede to the application for disqualification. 28 The appellants' argument on appeal did not seek to challenge the finding of the Federal Magistrate that he was not disqualified from dealing with the creditor's petition because of his earlier decision not to set aside the bankruptcy notice. What was argued was that the learned Magistrate should have disqualified himself by reason of the fact that he had made adverse findings relating to Mrs Perovich's credit in another, earlier, decision, to which he referred in his reasons, namely, Perovich v Traditional Values Management Limited [2006] FMCA 1471. In that case the Magistrate had dealt with an application by the appellants for a declaration that a bankruptcy notice had not properly been served on them. Mrs Perovich swore an affidavit in support of the application and gave oral evidence before the Federal Magistrate. He found significant parts of that evidence to be unsatisfactory. He found her to be an unreliable witness. She was "evasive and vague when it suited her, and implausible in other respects." He was not prepared to act on her unsupported evidence. The application was dismissed. This occurred on 14 September 2006. 29 Senior counsel for Mrs Perovich (who did not appear below) accepted that the adverse credit findings in Traditional Values were not relied on in support of the disqualification application. He also accepted that these findings were known to Mrs Perovich prior to the disqualification application being made and that, for some unexplained reason, they were not made known to counsel then appearing. Despite this, it was argued that the Federal Magistrate should be taken to have been aware of his earlier decision, given that he had referred to it in his reasons in the present case. Attention was also directed to the Federal Magistrate's statement that he had not previously expressed any view about the credit of any witness appearing before him. 31 Mrs Perovich contends that a reasonable apprehension of bias on the part of the Federal Magistrate arose in the present case because he had earlier made adverse findings relating to her credit and because there was a significant issue to be decided which depended, if she were to prevail, upon acceptance of her evidence that she was not insolvent. During argument senior counsel accepted that, by reason of the effluxion of time, the Federal Magistrate may well have forgotten that he had earlier made adverse findings concerning Mrs Perovich's credibility. Although Traditional Values had been referred to in the Magistrate's reasons, it was possible that this was because the Magistrate had extracted the case name from Court records without re-reading his reasons. Nonetheless, senior counsel submitted that the reasonable observer, seized of the knowledge that the earlier adverse credit findings had been made, would entertain a reasonable suspicion that the Magistrate would have regard to those findings when resolving credibility issues in the present case. Although the disqualification application had been made only by reference to the Federal Magistrate's earlier refusal to set aside the bankruptcy notice, the application had been made. This was not a case, so the argument ran, in which an applicant with good reason to seek a judge's disqualification stood by in the hope of a favourable decision and only alleged bias once that hope had been disappointed: cf Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572. 33 I have read carefully what the Federal Magistrate said in para [12] of his reasons. They may be understood as an assertion that he had not, previously, had occasion to pass on Mrs Perovich's credibility. In this he was mistaken. The mistake was understandable given that almost twelve months separated the Traditional Values decision and the decision presently under appeal. It is also understandable because counsel appearing for Mrs Perovich had not drawn the Federal Magistrate's reasons in Traditional Values to his attention or sought to rely on them in support of the disqualification application. In these circumstances it is reasonable to infer that the learned Magistrate's mistake was attributable to him not remembering that, in Traditional Values , he had reflected adversely on Mrs Perovich's credit. A reasonable observer, knowing that the Federal Magistrate had not recalled what he had earlier said about Mrs Perovich's credibility and knowing that her credit was not in issue in the present matter, would not, in my opinion, entertain a reasonable apprehension of bias on the part of the Federal Magistrate.


case_title: Sali v SPC Limited [1993] HCA 47 ; (1993) 116 ALR 625


case_outcome: referred to

case_title: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246


case_outcome: distinguished

case_text: It was common ground that, if such an overstatement had occurred, the bankruptcy notices were invalid: cf Re Greenhill; ex parte Myer (NSW) Limited (1984) 5 FCR 84 at 86. It was also accepted by all parties that the notices given by Mrs Perovich and Mr Spencer on 20 March 2007 were both timely and effective for the purposes of s 41(5) of the Act . 18 The appellants submit that the 17 May letter (together with the email which subsequently varied the date for payment of the $10,000) constituted a simple written contract which provided, unambiguously, that the $10,000 payment, when made, would be treated as a payment on account of the debt owed to the respondent. They complain that the Federal Magistrate erred by treating the written document as being ambiguous on this point, by relying on the solicitor's file note to assist in resolving the ambiguity and by having regard to the conduct of the parties in relation to the subsequent payment of $15,000. 19 The respondent contends that there is authority which binds me to hold that no overstatement has occurred because the bankruptcy notices correctly identified the amounts owing under the consent judgment made by the District Court. In any event, the respondent submits that the contractual terms, recorded in the 17 May letter, do not require that the $10,000 should be credited against the amount owing; rather it is to be treated as consideration for the indulgence, granted by the respondent, to forebear seeking judgment for the debt. 20 Section 41(5) of the Act provides: "(5) A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount, in fact, due unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement." This provision was considered by Morling J Greenhill . In that case final judgment had been entered against the debtor for a particular sum. It was common ground between the parties that, prior to the entry of the judgment, the debtor had paid $200 to the creditor as a part payment of the money due and that, accordingly, the judgment was wrongly entered because it had failed to take into account the $200 payment. It overstated the amount owing by that sum. This overstatement was held to render the notice invalid. 21 In Re Wilson v Official Trustee in Bankruptcy [1999] FCA 1760 the applicants sought an annulment of their bankruptcies under s 153B of the Act . Sequestration orders had been made on the basis of a judgment debt obtained from the New South Wales District Court. The applicants claimed that the creditor was not entitled to judgment in the full amount of the debt because of certain payments earlier made. Emmett J dismissed the applications. He declined to follow Greenhill and held that s 41(5) "is concerned with a claim of a bankruptcy notice for an amount greater than is, in fact, [owed] under a judgment " (emphasis in original). His Honour explained his reasons for differing from Morling J as follows: "[39] A bankruptcy notice must require the debtor to pay the judgment debt, in accordance with the judgment. The pre-existing obligation, which the judgment is intended to enforce, will have merged in the new obligation created by the judgment see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 353-354. It may well be that there would be good grounds for setting aside a judgment which was entered for an excessive amount. Further, it may be that this Court, as a Court of Bankruptcy would go behind a judgement in order to determine whether there was, in fact, anything due. Following the entry of a judgment, however, the amount due by the judgment debtor to the judgment creditor, and the amount for which execution might issue, is the sum stated in the judgment. Where a bankruptcy notice claims that amount, it cannot be said that it claims an amount that exceeds the amount in fact due. By reason of the judgment itself, the amount of the judgment is due. [40] Upon an application to a court exercising jurisdiction in bankruptcy to set aside a bankruptcy notice, the court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced, and would not support a finding that there was, in truth, no debt at all see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589. That decision of a Full Court of this Court is binding upon me and, it appears to me, that it would preclude a Judge, on hearing a bankruptcy petition, to go behind the judgment if the only purpose for doing so would be to show that the amount of the judgment should be reduced, not to show that no amount was owing. It may be relevant, if the amount of the judgment should be reduced to an amount below the minimum amount that supports a petition. However, that is not the case here." 24 I do not consider that Greenhill compels a different conclusion. In that case, unlike this, there was agreement between the parties in this Court that the judgment on which the bankruptcy notice was founded had mistakenly been entered for a sum greater than that which was, in fact, owing. In any event, I respectfully agree with Emmett J's reasons for holding that Greenhill should not be followed. 25 Although it is not strictly necessary to do so, I should say something about the issue of whether the contract, evidenced by the 17 May letter, provided for the $10,000 to be credited against the sum owed by the appellants. Nowhere in the terms contained in the letter is there an express term that the $10,000 was to be credited against the principal sum. Paragraphs (f) and (g), when read together, may be understood as suggesting that the $10,000 and the "further moneys" necessary to satisfy the $201,754.44 debt were to be payable on or before 20 July 2006. This suggests, so the appellants contend, that the $10,000, if paid, would, together with the balance needed to meet the debt, be deductible from the principal sum. That may be so if timely payment of the whole of the principal sum were made. The difficulty with the appellants' argument is that the appellants agreed to execute a consent judgment in the sum claimed of $201,754.44. They agreed that if they failed to make any payment due on or before 20 July 2006 (or within the agreed extended period) the respondent would file the consent judgment for the agreed sum. This would occur whether or not there had been partial payment in the intervening period. It is also to be noted that the appellants agreed to pay interest on the principal sum, not the principal sum as reduced by any payments made prior to the due date. 26 Even if it be assumed, in the appellants favour, that there is no ambiguity in the agreement, as recorded in the 17 May letter, rendering it unnecessary to have regard to parol evidence, I do not consider that a literal reading of the terms supports the construction contended for by the appellants. It follows, in my opinion, that the Federal Magistrate came to the correct conclusion.