mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
Section 43(2) of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to award costs in a proceeding. Traditionally costs only depart from the ordinary party-party basis where there is a particular or special circumstance: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 per Shepphard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. An order for indemnity costs aims to compensate a party fully for costs incurred when the Court takes the view that it has been innocently and unreasonably subjected to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed).
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: cited
Section 43(2) of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to award costs in a proceeding. Traditionally costs only depart from the ordinary party-party basis where there is a particular or special circumstance: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 per Shepphard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. An order for indemnity costs aims to compensate a party fully for costs incurred when the Court takes the view that it has been innocently and unreasonably subjected to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed).
Case: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1350
Outcome: cited
In Colgate-Palmolive Shepphard J (at 232-235) summarised some of the special circumstances which have led to an award of indemnity costs, including the making of allegations of fraud knowing them to be false, making of irrelevant allegations of fraud, commencing proceedings in wilful disregard of known facts, the making of allegations which ought never to have been made and the undue prolongation of a case by groundless contentions. In these circumstances a party's behaviour in the conduct of the proceeding means it is so unreasonable as to be unjust that the innocent party is limited in its recovery to party and party costs: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1350 at [4] .
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: cited
The first and second respondents submitted that the indemnity costs were appropriate because the applicant's conduct went beyond unreasonable and was found to be fraudulent. They submitted that full compensation of costs as innocent respondents was appropriate where an action has been commenced or continued where "an applicant, properly advised, should have know that he had no chance of success... and must be presumed to have been commenced or continued for some ulterior motive": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.
Case: Spalla v St George Motor Finance Ltd [2006] FCA 1537
Outcome: cited
In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.
Case: Bhagat v Global Custodians [2002] FCAFC 51
Outcome: cited
In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.
Case: Ogawa v The University of Melbourne (No 2) [2004] FCA 1275
Outcome: cited
In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.
Case: Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Outcome: cited
In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.
Case: SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104
Outcome: cited
The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention. 18 In SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) one question was whether for the purposes of s 198(6) of the Act the exercise of the discretionary power in s 417(1) is a review of an application for a substantive visa. Mansfield J held it was not. His Honour said at [24]: "The power to substitute a decision for a decision of the Tribunal is qualified only by the limitations preserved in s 417(2) and by the respondent having the opinion that the grant of the visa is in the public interest. The power to substitute a more favourable decision is not one which readily fits into the concept of a review. The power may be exercised independently of the Tribunal's decision, and irrespective of the reasons for the Tribunal's decision. The respondent may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act." 19 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 at [45]-[46] Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said: "when exercising the power under s 417, the Minister was not bound either by Subdiv AA (ss 44-51) or Subdiv AC (ss 65-69) of Div 3 of Pt 2 of the Act, or by the Regulations. That follows from the terms of s 417(2). Subdivision AC contains the central provision in s 65 obliging refusal to grant a visa if the Minister be not satisfied that the criteria prescribed by the Act or the Regulations for the relevant visa have been satisfied. Further, s 417(3) stipulates that the power under the section may only be exercised by the Minister personally. The identification of the Minister as the sole repository of the power indicates the legislative intention that the question of the substitution of a more favourable decision to disappointed applicants is to be answered by the taking of a broad approach. The point is emphasised by the express statement in s 417(1) that the power is to be exercised if the Minister "thinks that it is in the public interest to do so" and by the requirement in sub-ss (4), (5) and (6) respecting the laying before each House of the Parliament of a statement by the Minister where a decision more favourable to the applicant has been substituted."
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2003 [2003] HCA 1 ; (2003) 211 CLR 441
Outcome: applied
The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention.
Case: Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59
Outcome: cited
In Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59 a Full Court (Moore, Nicholson and Conti JJ) refused to interfere with the decision of a single judge refusing to grant orders nisi for constitutional writs on the ground that there was no viable basis therefor. However at [39] Conti J, with whom the other Judges agreed, referred to s 417: "Whilst cognisant of the confined scope of the issues arising on the appeal, I would nevertheless commend for reconsideration by the Minister, pursuant to s 417 ..., the following factors concerning this evidently unfortunate family, which may conceivably be thought to render permissible their remaining in Australia upon some appropriate visa basis. They are factors which might warrant reconsideration upon grounds divorced from the issues that have arisen for resolution on the appeal, being factors to which reference has already been made in the course of the reasons for judgment". 21 His Honour then listed the factors, which included injuries suffered by two of the applicants in a fire in Belgium before they came to Australia, their residence here for eleven years, the birth and schooling in Australia of a daughter of two of the applicants, and support provided to them by the wider Australian community. As his Honour said, these were factors that were extraneous to the refugee related matters with which the relevant Tribunals' decisions were concerned. As appears from [7] and [8], s 351 is in essentially the same form as s 417. The purpose and object of the two sections must be the same: to enable compassionate and humanitarian relief to be granted. In each case a broad approach is to be applied. The public interest referred to in each section is itself a broad concept, and there is no reason to confine the exercise of the power to ameliorate an applicant's position consequent on the denial of a visa by reference to matters relevant only to the granting or refusal of that visa. 325/2002 is an example of matters proper for the Minister to take into account under s 417 that were not relevant to the grant or refusal of a protection visa. The same approach should be available under s 351. 22 The Magistrate's decision, if correct, would apply to s 417, and would confine the Minister acting under that section to what might be called refugee related matters relevant to visa applicants within the jurisdiction of the Refugee Review Tribunal. As NATB and 325/2002 show, that is not the case.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40. Accordingly, a consideration will be irrelevant only if the applicable statute expressly or impliedly prohibits a tribunal from taking it into account: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160 ; (2000) 102 FCR 517 at [137] .
Case: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160 ; (2000) 102 FCR 517
Outcome: applied
Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40. Accordingly, a consideration will be irrelevant only if the applicable statute expressly or impliedly prohibits a tribunal from taking it into account: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160 ; (2000) 102 FCR 517 at [137] .
Case: Australian Medical Council v Wilson (1996) 68 FCR 46
Outcome: cited
Prior to closing submissions, Mr O'Gorman for the applicant stated he no longer pressed the applicant's direct discrimination claim under s 5 DD Act (TS p 285 ll 29-31). I note that it has been held in numerous cases that findings of direct and indirect discrimination are mutually exclusive ( Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349), and that the applicant in this case chose to pursue an indirect discrimination claim under s 6 DD Act , as well as a separate claim pursuant to s 9. 70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows: "i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111; ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83; iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable..."
Case: Bronk v Ineichen 54 F 3d 425 (7th Cir 1995)
Outcome: cited
Some support for an interpretation which recognises the breadth of the statute can be found in two US cases where similarly drafted legislation was considered: &#8226; In Bronk v Ineichen 54 F 3d 425 (7th Cir 1995) two profoundly deaf tenants complained that they had been the subject of discrimination by their landlord in relation to their dog which they claimed as a hearing dog. In acknowledging that it was necessary to establish as a minimum that the disabled persons' quality of life would be enhanced because the effect of their disability would be ameliorated by the accommodation of the animal (at 429), the United States Court of Appeals Seventh Circuit held that lack of formal schooling did not mean that the dog did not have enough skills to actually aid in the daily functions of a deaf person (at 430, 431). The relevant legislation in that case was Wis Stat Ann SS101.22 (4)(bm) which related, inter alia , to "an animal that is specially trained to lead or assist the individual with impaired vision, hearing or mobility...". &#8226; In Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998) where the landlord argued that the dog was not an appropriate accommodation for a deaf person because the plaintiffs were unable to produce any "verification" that the dog was a "certified" hearing assistance trained animal, the United States District Court found in favour of the plaintiff on grounds including that there was no relevant certification process for hearing dogs and no requirement as to the amount or type of training a service animal must undergo (at 1255-1256). The relevant legislation in that case was Or Rev Stat SS346,690 which prohibited a landlord from refusing to rent a dwelling unit to a physically impaired person on the basis of the use or possession of an assistance animal.