mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Clark v ING Life Ltd [2007] FCA 1960
Outcome: followed
Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.
Case: Craddock v Sweeney [2005] QSC 037
Outcome: cited
That phrase, the Trustee contends, imposes a requirement to satisfy each of the two requirements, namely that the liability must be incurred by reason of Mr Rickus holding office, and also the requirement that the liability must be incurred whilst he was acting in the capacity as an officer of the Trustee. The construction of any individual deed must obviously depend upon the terms of the deed under consideration. But the construction now being advanced on behalf of the Trustee is consistent with a conclusion expressed in respect to a comparable provision in Craddock v Sweeney [2005] QSC 037 at [18]. 34 In the present proceeding, the Trustee contends that Mr Rickus cannot bring himself within this phrase because he ceased to be a director of the Trustee on 10 December 2006 and the present proceeding was not commenced until September 2007. At the time the liability to costs was incurred it is contended that Mr Rickus was not a director and was not " acting in the capacity of an officer of the Company ". 35 It is not considered that this argument should prevail. Clause 2.2 confers an indemnity in respect to a " liability for legal costs ". The indemnity extends to the payment of such costs " in respect of a Liability incurred ... by virtue of holding office as and acting in the capacity of an officer of the Company ". The " Liability " there referred to is the " Liability " to accede to the claim for the return of the documents. At the time the documents were produced by Mr Rickus to the Authority, and at the time the first demand was made for the return of those documents, and that demand was resisted, Mr Rickus remained a director of the Trustee. Indeed, it was because he was a director that the Trustee maintains that he was under a duty to return the documents or a copy of the documents.
Case: Daniels v Anderson (1995) 37 NSWLR 438
Outcome: cited
The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.
Case: Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260
Outcome: cited
The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.
Case: Dover v Cory [1901] AC 477
Outcome: cited
In some circumstances, for example, it has been said that it is " the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration ": Dover v Cory [1901] AC 477. There being addressed was the responsibility of a director to inform himself as to the records of the company as opposed to the reliance he could place upon a chairman or a general manager in identifying those matters requiring his consideration. Lord Davey concluded as follows (at 492 3): In this state of the evidence, my Lords, I ask whether the course of business at the board meetings, as described by the respondent, was a reasonable course to be pursued by the respondent, and other directors, or whether the knowledge which might have been derived from a careful and comparative examination of the weekly states and quarterly returns from the different branches of the bank ought to be imputed to the respondent, or (alternatively) whether he was guilty of such neglect of his duty as a director as would render him liable to damages. I do not think that it is made out that either of the two latter questions should be answered in the affirmative. I think the respondent was bound to give his attention to and exercise his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so. But I think he was entitled to rely upon the judgment, information, and advice of the chairman and general manager, as to whose integrity, skill, and competence he had no reason for suspicion. I agree with what was said by Sir George Jessel in Hallmark's Case [(1878) 9 Ch D 329] , and by Chitty J. in In re Denham &amp; Co. [(1883) 25 Ch D 752] , that directors are not bound to examine entries in the company's books. It was the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration; but the respondent was not, in my opinion, guilty of negligence in not examining them for himself, notwithstanding that they were laid on the table of the board for reference. ... In other circumstances it has been said that a " chairman has the primary responsibility of selecting matters and documents to be brought to the board's attention ": AWA Ltd v Daniels (1992) 7 ACSR 759 at 867. More recently, in Australian Securities and Investments Commission v Rich [2003] NSWSC 85 at [51] [72], 174 FLR 128 at 141 7, Austin J has reviewed the authorities and considered the duties owed by a chairman of a listed company. See also: Australian Securities and Investments Commission v Vines [2003] NSWSC 1116 , 182 FLR 405.
Case: Edman v Ross (1922) 22 SR (NSW) 351
Outcome: cited
The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.
Case: Grundy v Lewis [1998] FCA 563
Outcome: cited
Had the entirety of the proceeding been concluded in July 2008 by the discontinuance by the Applicants of their claim for relief, it may well have been that an order for costs, or some part of the costs that had been incurred, would have been made in favour of Mr Rickus. In Smith v Airservices Australia Stone J, for example, referred with approval to the following observations of Cooper J in Grundy v Lewis [1998] FCA 563: Although the power to award costs is unfettered, there is in the Federal Court Rules an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties ... unless the court otherwise orders (see for example O 22 r 3, O 62 r 26). This " underlying policy ", according to Her Honour, had not " hardened into a usual rule ": [2005] FCA 997 at [44] . But the " underlying policy " may well have indicated that Mr Rickus may have obtained a favourable costs order. Whether or not he was exposed to a duty or obligation to produce to the Trustee the documents or a copy of the documents he had been required to produce to the Authority, would have been an issue not requiring resolution.
Case: Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700
Outcome: cited
Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.
Case: Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541
Outcome: cited
The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. As a matter of general principle it was common ground that: (a) the duty owed by a director to his company is fiduciary in character (eg, Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261 at 268 per King CJ); (b) the duty includes a duty to act bona fide and in the best interests of the company (eg, Darvall v North Sydney Brick &amp; Tile Co Ltd (1989) 16 NSWLR 260 at 270 per Kirby P; Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671); (c) the discharge of that duty may involve a right on the part of a director to inspect those documents relevant to the discharge of the duty (eg, Edman v Ross (1922) 22 SR (NSW) 351 ; Molomby v Whitehead [1985] FCA 421 ; (1985) 7 FCR 541 at 550 per Beaumont J); (d) the discharge of the duty involves a director becoming familiar with how the company conducts its business (eg, Daniels v Anderson (1995) 37 NSWLR 438 at 500 1); and (e) a director who occupies the position of chairman may have additional rights and duties, including a duty of selecting documents to be placed before the board for its consideration and keeping the board fully informed (cf Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 225 per Mahoney JA). Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065] [8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117
Outcome: cited
Two previous decisions have been given in the present proceeding. The first was on 7 November 2007 when ( inter alia ) orders previously made for the determination of separate questions were vacated and leave was granted to amend the then state of the pleadings: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117. The Authority was also then joined as the Second Respondent. A second decision was given on 26 November 2007 when ( inter alia ) the Trustee was ordered to pay the costs of Mr Rickus on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878.
Case: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878
Outcome: cited
Two previous decisions have been given in the present proceeding. The first was on 7 November 2007 when ( inter alia ) orders previously made for the determination of separate questions were vacated and leave was granted to amend the then state of the pleadings: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117. The Authority was also then joined as the Second Respondent. A second decision was given on 26 November 2007 when ( inter alia ) the Trustee was ordered to pay the costs of Mr Rickus on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878.
Case: National Roads and Motorists' Assoc v Whitlam [2007] NSWCA 81 , 25 ACLC 688
Outcome: applied
The " Liability " to accede to the demand of the Trustee is considered to be a " Liability " incurred at a time when Mr Rickus was " holding office as ... an officer of " the Trustee. In National Roads and Motorists' Assoc v Whitlam [2007] NSWCA 81 , 25 ACLC 688 Campbell JA observed in respect of a like provision: [78] The expression "as an officer" has in the present context the shade of meaning of "while acting in the role of an officer". If an officer is sued for a liability he or she is alleged to owe by reason of his or her actions in the role of an officer, it is within the scope of the indemnity. It is because any such liability is within the scope of the indemnity that reasonable costs incurred in defending any such assertion of liability are themselves also within the scope of the indemnity. Beazley JA and Handley AJA there agreed with Campbell JA. Special leave to appeal was refused: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484. The fact that Mr Rickus thereafter ceased to occupy that office is not considered to be a reason to reach any contrary conclusion.
Case: New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 , 216 FLR 126
Outcome: followed
By virtue of s 140(1)(b) of the Corporations Act 2001 (Cth) a company's constitution has effect as a contract between the company and each director of the company. See: New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 at [20] , 216 FLR 126 at 130 per Barrett J. 43 Relevantly, cl 88 provides as follows: Officers: Indemnities and Insurance 88. (1) In this Article:- (a) "Legal Costs" of a person means legal costs incurred by that person in defending an action for Liability of that person. (b) "Liability" of a person means any liability incurred by that person as an officer of the Company or a subsidiary of the Company. (c) "Relevant Officer" means a person who is, or has been, a Director or Secretary. (2) To the extent permitted by law, the Company must indemnify each Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. (3) To the extent permitted by law, the Company may make a payment (whether by way of advance, loan or otherwise) to a Relevant Officer in respect of Legal Costs of that person. (4) To the extent permitted by law, the Company may pay, or agree to pay, a premium for a contract insuring a Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. (5) To the extent permitted by law, the Company may enter into an agreement or deed with:- (a) a Relevant Officer; or (b) a person who is, or has been, an officer of the Company or a subsidiary of the Company, under which the Company must do all or any of the following:- ... (d) indemnify that person against any Liability of that person; (e) make a payment (whether by way of advance, loan or otherwise) to that person in respect of Legal Costs of that person... ... Section 9 of the Corporations Act relevantly defines an " officer " as including a director. 44 The advantage to Mr Rickus should cl 88, and in particular cl 88(2), be an independent source of the indemnity sought to be invoked is that the indemnity thereby conferred would be free of the textual constraints imposed by cl 2.2 of the Deed . Clause 88(4), upon which some reliance was placed, does not assist. It is simply a provision which permits the payment of a premium.
Case: O'Neill v Mann [2000] FCA 1680
Outcome: considered
Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.