mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In the Matter of Federation Health Ltd (Administrator Appointed [2006] FCA 314
Outcome: cited
The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'
Case: Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630
Outcome: cited
The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'
Case: Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230
Outcome: cited
The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'
Case: Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769
Outcome: cited
The appeal process has been described in an analogous but not identical context as "originating proceedings which the Court hears de novo" Tanning Research Industries Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 at 339 (Brennan and Dawson JJ). The context in that case was an appeal against rejection by a liquidator of a proof of debt. It was applied to the characterisation of the proceedings in that case and has been applied to like proceedings under s 1321 involving an appeal against an administrator's rejection of a proof of debt: In The Matter of Federation Health Ltd (Administrator Appointed) [2006] FCA 314 at [32] [36] (Young J), citing also Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 at 631 [3] (Bryson J) and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [29] - [33] (Young CJ). See also Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769 in which Templeman J said (at 772): 'I understand a hearing de novo in this context to be one in which the parties are not bound by the evidence at the previous hearing, but may supplement it as they think fit ... But despite the admission of further evidence, the onus remains with the party who challenges the decision.'
Case: Duffy v Super Centre Development Corporation Ltd [1967]1 NSWR 382
Outcome: cited
Where an appeal is brought against a discretionary or evaluative decision of receivers and managers, and particular decisions involving qualitative judgment, the scope for curial intervention is necessarily confined. In the case of a court appointed receiver and manager, Street J in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 said (at 383): 'The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company's assets. To the extent to which he makes decisions from time to time, they are in effect made under the authority of the Court itself, and they are subject to review and control by the Court should a proper case be made out requiring such intervention. Whilst this Court does, therefore, have an ultimate control over the day-to-day actions of a receiver and manager, it is a control which is not in my view to be too freely exercised. If, of course, there can be shown to be some defect in the manner in which the receiver and manager is conducting his duties a defect arising out of some want of good faith or out of some erroneous approach in law or in principle then that is clearly a ground on which the Court would entertain an application by one of the interested parties for appropriate directions or some other form of remedial order. Where, however, the challenge made is that there has been an absence of prudence and wisdom in the receiver's decisions, a far heavier onus rests upon the party who seeks to challenge the decision in question. The Court will not concern itself with minor and ordinary decisions that he may have made: it must be shown that there is a decision of real significance in the affairs of the company and as to which there are real and substantial grounds for questioning its correctness before the Court will embark upon an investigation of what, if any, directions ought to be given.' Those observations were repeated by his Honour in Re Mineral Securities Australia Ltd (In Liq) [1973] 2 NSWLR 207 at 231, a case involving a challenge to a decision of a liquidator. To the extent that those observations related to court appointed receivers and managers, they apply with greater force to receivers and manages privately appointed with extensive powers under a company charge.
Case: Re Mineral Securities Australia Ltd (In Liq) [1973] 2 NSWLR 207
Outcome: cited
Where an appeal is brought against a discretionary or evaluative decision of receivers and managers, and particular decisions involving qualitative judgment, the scope for curial intervention is necessarily confined. In the case of a court appointed receiver and manager, Street J in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 said (at 383): 'The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company's assets. To the extent to which he makes decisions from time to time, they are in effect made under the authority of the Court itself, and they are subject to review and control by the Court should a proper case be made out requiring such intervention. Whilst this Court does, therefore, have an ultimate control over the day-to-day actions of a receiver and manager, it is a control which is not in my view to be too freely exercised. If, of course, there can be shown to be some defect in the manner in which the receiver and manager is conducting his duties a defect arising out of some want of good faith or out of some erroneous approach in law or in principle then that is clearly a ground on which the Court would entertain an application by one of the interested parties for appropriate directions or some other form of remedial order. Where, however, the challenge made is that there has been an absence of prudence and wisdom in the receiver's decisions, a far heavier onus rests upon the party who seeks to challenge the decision in question. The Court will not concern itself with minor and ordinary decisions that he may have made: it must be shown that there is a decision of real significance in the affairs of the company and as to which there are real and substantial grounds for questioning its correctness before the Court will embark upon an investigation of what, if any, directions ought to be given.' Those observations were repeated by his Honour in Re Mineral Securities Australia Ltd (In Liq) [1973] 2 NSWLR 207 at 231, a case involving a challenge to a decision of a liquidator. To the extent that those observations related to court appointed receivers and managers, they apply with greater force to receivers and manages privately appointed with extensive powers under a company charge.
Case: Clayton v Heffron [1960] HCA 92 ; (1960) 105 CLR 214
Outcome: followed
However, the performance of a public duty or the fulfilment of a public function by a body such as Airservices is different to the performance or fulfilment of private rights or privileges by a private individual or corporation acting in its own interest. If the Court took a strict view of the public duty or function, a deviation from the conditions laid down in the statute would make the act of the public body invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 392 [97] per McHugh, Gummow, Kirby and Hayne JJ. The inconvenience to the public which that approach would occasion is a powerful reason against adopting that construction: Clayton v Heffron [1960] HCA 92 ; (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. In Project Blue Sky 194 CLR at 392-393 [99]-[100] the majority held that while the statute there imposed a legal duty on the authority, an act done in breach of the statutory duty was not invalid. But, they held, a person with a sufficient interest could sue for a declaration that the authority had acted in breach of the statute and, in an appropriate case, could obtain an injunction restraining it from taking any further action based on its unlawful conduct. 71 Indeed, the 2005 master plan for Canberra airport contains an ultimate practical capacity ANEF as at 2050 (par 10.5.5 and fig 10.5) and a comparison between the 20 ANEF contours for the 2050 ultimate practical capacity ANEF, the 2024 ANEC ('Australian Noise Exposure Concept') and the former 1997 ANEF (fig 10.6). A master plan which is approved by the Minister becomes a final master plan which comes into force at the time of the approval. It is unlikely that the inclusion of matters in addition or supplementary to those required to be included in a master plan were intended by the Parliament to have the effect of rendering invalid a draft or final master plan: Project Blue Sky 194 CLR at 391 [94] [95]; see too at 381-382 [69] [71], 384 [78] per McHugh, Gummow, Kirby and Hayne JJ, Clayton v Heffron 105 CLR at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. The consequence of Village's argument is so impracticable that it cannot have been intended in the absence of express words.
Case: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 35
Outcome: followed
However, the performance of a public duty or the fulfilment of a public function by a body such as Airservices is different to the performance or fulfilment of private rights or privileges by a private individual or corporation acting in its own interest. If the Court took a strict view of the public duty or function, a deviation from the conditions laid down in the statute would make the act of the public body invalid: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 392 [97] per McHugh, Gummow, Kirby and Hayne JJ. The inconvenience to the public which that approach would occasion is a powerful reason against adopting that construction: Clayton v Heffron [1960] HCA 92 ; (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. In Project Blue Sky 194 CLR at 392-393 [99]-[100] the majority held that while the statute there imposed a legal duty on the authority, an act done in breach of the statutory duty was not invalid. But, they held, a person with a sufficient interest could sue for a declaration that the authority had acted in breach of the statute and, in an appropriate case, could obtain an injunction restraining it from taking any further action based on its unlawful conduct. 71 Indeed, the 2005 master plan for Canberra airport contains an ultimate practical capacity ANEF as at 2050 (par 10.5.5 and fig 10.5) and a comparison between the 20 ANEF contours for the 2050 ultimate practical capacity ANEF, the 2024 ANEC ('Australian Noise Exposure Concept') and the former 1997 ANEF (fig 10.6). A master plan which is approved by the Minister becomes a final master plan which comes into force at the time of the approval. It is unlikely that the inclusion of matters in addition or supplementary to those required to be included in a master plan were intended by the Parliament to have the effect of rendering invalid a draft or final master plan: Project Blue Sky 194 CLR at 391 [94] [95]; see too at 381-382 [69] [71], 384 [78] per McHugh, Gummow, Kirby and Hayne JJ, Clayton v Heffron 105 CLR at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ. The consequence of Village's argument is so impracticable that it cannot have been intended in the absence of express words.
Case: Australian Trade Commission v Disktravel [2000] FCA 62
Outcome: cited
a general proposition costs follow the event in the absence of circumstances justifying departure from that position. However in this case, to echo McLelland J in The Ritz Hotel Ltd v Charles of the Ritz Ltd (1989) AIPC 38 ,940 (90-567) at 940, "the event" is a complex notion. While the courts caution against too ready a resort to apportionment according to issue-based outcomes ( Australian Trade Commission v Disktravel [2000] FCA 62 at [3] (Full Court), cf Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492) , more recently the Full Court has also observed that fairness should dictate how judicial discretion is to be exercised in respect of costs. Accordingly if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied ( Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] ).
Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Outcome: followed
a general proposition costs follow the event in the absence of circumstances justifying departure from that position. However in this case, to echo McLelland J in The Ritz Hotel Ltd v Charles of the Ritz Ltd (1989) AIPC 38 ,940 (90-567) at 940, "the event" is a complex notion. While the courts caution against too ready a resort to apportionment according to issue-based outcomes ( Australian Trade Commission v Disktravel [2000] FCA 62 at [3] (Full Court), cf Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492) , more recently the Full Court has also observed that fairness should dictate how judicial discretion is to be exercised in respect of costs. Accordingly if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied ( Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] ).
Case: Elliott v Lord Rokeby (1881) 7 App Cas 43
Outcome: cited
Elliott v Lord Rokeby (1881) 7 App Cas 43 at 47 Lord Blackburn said: Upon that view of the matter I most completely agree that there being a success to the appellants on one point of their appeal, it is not reasonable that they should pay costs to the other side. But there being so very much upon which they have forced the respondent to come here for no purpose, I think the respondent on the other hand should not be obliged to pay costs either. Consequently as Lord Campbell used frequently to say in the Court of Queen's Bench in such cases, "the costs are to the victor, but where there is no victor there can be no costs". I think that would be the right principle here. (cf decision of Simmonds J in respect of costs in Interim Advance Corporation Pty Ltd trading as Aussie Cash v Commissioner for Consumer Protection (2009) WASC 1)
Case: Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492
Outcome: cited
a general proposition costs follow the event in the absence of circumstances justifying departure from that position. However in this case, to echo McLelland J in The Ritz Hotel Ltd v Charles of the Ritz Ltd (1989) AIPC 38 ,940 (90-567) at 940, "the event" is a complex notion. While the courts caution against too ready a resort to apportionment according to issue-based outcomes ( Australian Trade Commission v Disktravel [2000] FCA 62 at [3] (Full Court), cf Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492) , more recently the Full Court has also observed that fairness should dictate how judicial discretion is to be exercised in respect of costs. Accordingly if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied ( Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] ).
Case: Forbes Engineering (Asia) Pte Limited v Forbes [2007] FCA 67
Outcome: cited
my view the respondents are entitled to their costs of an interlocutory application filed 18 January 2007, in which they successfully sought an order that Deloitte Touche Tohmatsu make discovery of all documents in its possession relating to the financial affairs of the second applicant for the years ending 31 December 1997, 1998 and 1999 ( Forbes Engineering (Asia) Pte Limited v Forbes [2007] FCA 67). Otherwise, in my view the appropriate order is that the parties should bear their own costs in respect of the substantive proceedings and the notice of motion filed 12 September 2007. I form this view for the following reasons. Second respondent
Case: Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675
Outcome: cited
Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 I made the following substantive orders: In relation to the amended application filed 31 March 2006: In relation to the notice of motion filed 12 September 2007: At the time of delivery of judgment I also made orders for the applicants and the respondents to file and serve submissions as to costs. Those submissions were filed and served, and I take them into account for the purposes of delivery of this judgment. In the substantive judgment I found the applicant successful in part. In favour of the applicants I found, in summary, that: However while many aspects of the respondents' defence failed, I found the respondents substantiated their defences in respect of the liability of the second respondent, and to the applicants' claim concerning the 1999 Profit Shortfall in the amount of $1,818,568. In relation to the notice of motion filed 12 September 2007 the respondents sought an order that the proceedings be permanently stayed as an abuse of process, and alternatively orders pursuant to s 135 or s 136 of the Evidence Act that certain affidavit material be excluded. This time the respondents were successful in part I found in their favour in relation to the exclusion of evidence, but they were unsuccessful in relation to their claim of abuse of process. Submissions of the parties
Case: Interim Advance Corporation Pty Ltd trading as Aussie Cash v Commissioner for Consumer Protection (2009) WASC 1
Outcome: cited
Elliott v Lord Rokeby (1881) 7 App Cas 43 at 47 Lord Blackburn said: Upon that view of the matter I most completely agree that there being a success to the appellants on one point of their appeal, it is not reasonable that they should pay costs to the other side. But there being so very much upon which they have forced the respondent to come here for no purpose, I think the respondent on the other hand should not be obliged to pay costs either. Consequently as Lord Campbell used frequently to say in the Court of Queen's Bench in such cases, "the costs are to the victor, but where there is no victor there can be no costs". I think that would be the right principle here. (cf decision of Simmonds J in respect of costs in Interim Advance Corporation Pty Ltd trading as Aussie Cash v Commissioner for Consumer Protection (2009) WASC 1)
Case: Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) (2007) NSWSC 568
Outcome: cited
I note the applicants' submission concerning the decision in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) (2007) NSWSC 568 (a case where the trial judge ordered a defendant to pay 80% of the plaintiff's costs notwithstanding the defendant's submission that the plaintiff only recovered 10% of its total claim against the defendant) a review of that decision reveals that the costs awarded included significant items of expenditure clearly related to the circumstances of that particular case including promotional material, travel, wages, copyrighting and bookkeeping. Finally, although the respondents were successful pursuant to their notice of motion filed 12 September 2007 in obtaining an order excluding certain affidavit evidence, they were unsuccessful in relation to their claim for a permanent stay, which was an important issue requiring determination in respect of that notice of motion.