mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971
Outcome: applied
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] . 5 Whatever the case, the Court should not make such an order for costs unless there is some clear basis or "some special or unusual feature in the case": Pacific Publications at [5] . 6 Here the applicants point to what they describe as particular misconduct on the part of the respondents, as well as the undue prolongation of the defence in the proceeding. Whilst discrete matters, they are, in a significant way, overlapping questions. 7 These complaints concern the conduct of the respondents both in preparation for and at trial, going to the issue of the derivation of the accused plans and houses and whether or not these had been copied from the Copyright Works.
Case: Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297
Outcome: referred to
The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347.
Case: Re Wilcox; ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152
Outcome: applied
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: United Insurance Advisers Pty Ltd v United Insurance Advisers (National) Pty Ltd [2006] FCA 440
Outcome: cited
Reliance is also placed upon the decision in United Insurance Advisers Pty Ltd v United Insurance Advisers (National) Pty Ltd [2006] FCA 440 per Young J at [28] where his Honour said: 'The essential principle is that a discretion can be exercised to order costs on an indemnity basis where the actions of the unsuccessful party have been unreasonable or high-handed or where the claim in question was totally frivolous or hopeless or fundamentally flawed.'
Case: Anthony Vasyli v AOL International Pty Limited [1996] FCA 804
Outcome: referred to
The taxation of costs, in a case such as this, is likely to be an expensive exercise. The Court will eschew multiple taxations in a proceeding: Vasyli v AOL International Pty Limited [1996] FCA 804. The appeal may be successful, in which case, the significant costs of preparation for taxation will have been wasted: Brasington v Overton Investments Pty Ltd [2001] FCA 571 at [13] . On the other hand, the disposition of the quantum case, assuming an unsuccessful appeal, is likely to be a long way off. 34 In these circumstances I consider that there should be a departure from the ordinary rule under O 62 rule 3(3) to enable taxation of costs to occur prior to the conclusion of the proceeding but tempered by the fact of an appeal likely to be heard in the near future. I propose to order that the applicants' costs be taxed and paid, including the costs of this motion, forthwith but to stay the operation of that order pending the determination of both the application for leave to appeal, and the appeal, if leave is granted, or until further order. I will grant liberty to apply in this respect to allow for any unforeseen and undue delay in that determination. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 23 November 2007 Counsel for the Applicants: Mr C Golvan SC Solicitors for the Applicants: Middletons Counsel for the Respondent: Mr D Catterns QC with Dr W Rothnie Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 30 October 2007 Date of Judgment: 23 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1823.html
Case: Yap v Granich &amp; Associates [2001] FCA 1735
Outcome: cited
I would think it likely that leave to appeal will be granted. The judgment, whilst interlocutory, is one on points of substance: Yap v Granich &amp; Associates [2001] FCA 1735 ; Dunstan v Orr [2007] FCA 873 at [6] ; Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493
Outcome: cited
Godwin submits that, if there were a decision for the purposes of s 13 of the ADJR Act, Mr Priestley is not a person aggrieved by that decision. She submits that there is nothing in Mr Priestley's application which indicates the manner in which Mr Priestley alleges his interests were affected, adversely or otherwise, by the decisions he alleges Mr Budak made on 17 October 2007. Accordingly, she submits, Mr Priestley is not a person aggrieved within the meaning of s 3(4)(a)(i) of the ADJR Act for the purposes of ss 5 and 13 of that Act. Ms Godwin submits that Mr Priestley has no special interest as described in Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 at 530-531. She submits that, as the High Court pointed out, a belief that particular conduct should be taken or prevented is not sufficient to give the possessor of that belief locus standi . Mr Priestley is not, she says, a person interested, in that he is not likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest. Ms Godwin submits that Mr Priestley cannot demonstrate and has not demonstrated an interest in Mr Budak's alleged decision beyond an interest being held by virtue of being a member of the public, albeit a public linked to Parliamentary Service employees ( Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121 ; (1981) 36 ALR 64).
Case: Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377
Outcome: cited
Priestley does not deny that he received the letter containing the reasons of 17 October 2007. The document was delivered specifically to Mr Priestley. I am prepared to infer that it was delivered on behalf of Mr Budak ( Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377 at 385). This leaves open the question whether the requirement in s 13(2) that ' the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request ' requires that the decision be furnished personally by the decision-maker. "Furnish" means "provide or supply" ( Macquarie Dictionary , Revised 3 rd Edition). Section 13(2) cannot, in my opinion, be read to preclude, for example, the sending by post. This itself involves the use of other persons to furnish the reasons. I see no substantive difference in asking another person to arrange to have the reasons of the decision-maker sent to the person who made the request. In this case, Mr Budak's reasons were enclosed in a letter signed by Ms Karen Labrum, Acting Regional Director, ACT, Australian Public Service Commission. The basis of Mr Priestley's application is that he was given no reasons for an alleged decision made on 17 October 2007. The complaint that he received reasons but that they were not furnished to him by the decision-maker does not seem relevant to this application. In any event, I do not accept that they were not furnished as required.
Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: cited
Priestley says that he is entitled to reasons for decisions which he says were made on 17 October 2007. Before one looks to see whether there is a decision under an enactment, which must be expressly or impliedly required or authorised by the enactment and must confer, alter, or otherwise affect legal rights or obligations ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] ), a threshold question must be considered: was there a decision made on that date? An examination of Mr Budak's reasons of 17 October 2007 for his decision of 18 September 2007 discloses that he considered the substance of the allegations against the Parliamentary Service Commissioner, Ms Briggs. Mr Budak explained in his reasons that he formed the view that Mr Priestley's allegations against Ms Briggs were not sufficiently persuasive to warrant further investigation. Specifically, Mr Budak said that the letter and attachments that were said by Mr Priestley to have been divulged by Ms Briggs to the former Merit Protection Commissioner, Mr Lamond, were in fact received by Ms Briggs after Mr Lamond's departure for a position in another Department. Accordingly, the allegation that the documents had been passed by Ms Briggs to Mr Lamond for purposes connected with Mr Lamond's then current position as Parliamentary Service Merit Protection Commissioner was unfounded, as was the allegation that the receipt of the letter and attachments by Mr Lamond had prompted his resignation. He had already left the position. Mr Priestley's letter of 27 August 2007 also contained allegations concerning breaches of the Code of Conduct by Mr Lamond himself. Mr Priestley appears to submit that Mr Budak was obliged to make a decision pursuant to clause 2.4.3 of the Determination to refer the allegations concerning Mr Lamond to the relevant officer holder.
Case: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612
Outcome: referred to
his submissions, Mr Priestley raises various complaints about previous orders made by a judge of the Court. No appeal or application for leave to appeal was brought against the making of those orders in this Court. However, it appears that those orders were the subject of consideration by the High Court in Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612. In that case, French CJ said that Mr Priestley's allegations regarding those previous orders were ' baseless '. I will not consider them further. Mr Priestley also provided detailed submissions on the obligation to provide a statement of reasons within the meaning of the ADJR Act. That obligation is not disputed. Ms Godwin does not deny that such a general obligation exists as provided by the ADJR Act. Rather, she says that a decision was made on 18 September 2007, that reasons were given on 17 October 2007 and that no further decisions were made. At the time that Mr Budak wrote to Mr Priestley informing him that he did not come to a new decision in his statement of reasons of 17 October 2007 and did not accept that he was obliged to provide a further statement of reasons, he was no longer the Acting Parliamentary Service Merit Protection Commissioner. This is of relevance because s 13(3) of the ADJR Act relevantly provides: Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request: (a) give to the second-mentioned person notice in writing of his or her opinion; or...
Case: Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
23 of the Federal Court Act provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue or direct the issue of writs of such kinds, as the Court thinks appropriate. Section 23 does not invest the Court with jurisdiction. Jurisdiction is conferred by other statutes ( Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161). Relevantly for these proceedings, Parliament has invested the Court with jurisdiction in relation to statements of reasons pursuant to s 13 of the ADJR Act. Section 13(4A) of the ADJR Act provides that the Court may, on application, make an order declaring that the person who made a request for a statement of reasons was, or was not, entitled to make the request. That section is the source of the Court's jurisdiction to make orders with respect to statements of reasons and, Ms Godwin submits, limits the Court's powers in granting relief to declaring that a person does, or does not have, an entitlement to make a request for a statement of reasons. A declaration that a person was entitled to make a request for a statement of reasons then requires the person to whom the request was made to provide such a statement within 28 days (s 13(4) of the ADJR Act). Ms Godwin points to the procedures in s 13 of the ADJR Act. Mr Priestley made a request to Mr Budak for reasons for the decisions he says were made on 17 October 2007 (s 13(1)). Mr Budak formed the opinion that Mr Priestley was not entitled to make the request because there was no decision as alleged and gave Mr Priestley notice in writing of his opinion (purportedly under s 13(3)). Following the receipt of a s 13(3) notice, the course available to Mr Priestley would have been to apply to the Court for an order declaring that he was or was not entitled to make the request (s 13(4A)).
Case: Bodney v State of Western Australia [2003] FCA 890
Outcome: referred to
propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Colbung v The State of Western Australia [2003] FCA 774
Outcome: referred to
propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Daniel v Western Australia (2003)194 ALR 278
Outcome: considered
importance of proper authorisation to the native title determination claim process has been emphasised many times. For present purposes, it is sufficient to refer to the remarks of French J (as his Honour then was) in Daniel v Western Australia [2002] FCA 1147 ; (2003) 194 ALR 278 at 283 [11] : It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or state governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground. (See also Dieri People at 377 [55] per Mansfield J.)
Case: Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J.