mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: cited
The relevant principles were summarised by Toohey J when a judge of the Federal Court in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136: The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey [1920] 2 KB 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar [1893] 1 QB 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at 12. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at 16. His Honour sounded what he described as "a note of cautious disapproval" of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented: But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.
Case: Byers v Dorotea Pty Ltd (1986) 69 ALR 715
Outcome: applied
A major issue in contention is the proposed orders for distribution of the partnership assets and compensation for the applicant. The applicant does not seek, nor in my view would he be entitled to, rescission of the partnership contract. This does not preclude him from obtaining orders under s 87 of the Trade Practices Act 1974 (Cth) or s 72 of the Fair Trading Act 1987 (NSW) to compensate him for loss or damage ; Byers v Dorotea Pty Ltd (1986) 69 ALR 715.
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: applied
It is necessary, however, that he has suffered or be likely to suffer loss or damage; I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109. The applicant paid $300,000 for a 15% share in the partnership business. This indicates that, consistent with the valuation of Mr Magin, the business was valued at $2 million. Mr Philip Rennie, whose subsequent valuation both parties agreed to accept, and which I also accepted, (see the earlier judgment at [183] et seq) assessed the partnership business as being worth at most $900,000. On that basis a 15% share would be worth only $135,000. Mr Rennie's valuation did not take into account the value of the Supreme Court action referred to in [8] of the earlier judgment however I am not satisfied that any value can be attributed to that action. In accepting Mr Rennie's valuation I accepted that the applicant has suffered or is likely to suffer loss or damage. I say, "likely", because it is possible that on realisation of the partnership assets, the partnership will be shown to have made a profit. On Mr Rennie's valuation that is extremely unlikely but it is at least a theoretic possibility. This finding is sufficient to enliven the Court's power to make orders under s 87 of the Trade Practices Act 1974 (Cth) and under s 72 of the Fair Trading Act 1987 (NSW). 10 The orders sought by the applicant would provide for the assets of the partnership to be distributed in accordance with s 44 of the Partnership Act 1892 (NSW) with one exception, which relates to the distribution of the ultimate residue of the assets of the partnership referred to in s 44(b)(4) of the Partnership Act . Section 44(b)(4) provides that, after the other payments specified in s 44 have been made, the ultimate residue is to be "divided among the partners in the proportion in which profits are divisible". Central to the exception proposed by the applicant is the amount of $300,000 that the applicant paid to the second respondent for investment in the partnership. The applicant seeks to have that amount returned to him with interest (the "Applicant's Contribution Amount"). It is not in contention that, with interest calculated up to and including Thursday 27 September 2007, that amount is $357,629.25. 11 The applicant's proposal is as follows. The receiver should distribute the ultimate residue in the following order: (1) pay to the applicant his 15% of the ultimate residue (the "Applicant's Residue Amount"); (2) if the Applicant's Residue Amount is less than the Applicant's Contribution Amount, pay the difference between these two amounts to the applicant; and (3) pay the balance, if any, to the other partners. Finally, the applicant submits that the respondents should be ordered to pay to the applicant the amount, if any, by which the amount payable to the applicant by the receiver from the proceeds of the partnership is less than the Applicant's Contribution Amount.
Case: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136
Outcome: applied
On 7 August 2007 I delivered a judgment (the 'earlier judgment') on the substantive issues in the above matter; [2007] FCA 1136. At the request of the parties I made no orders for relief or in relation to costs at that time but allowed them a reasonable time to bring in short minutes of order for the resolution of the matter in the light of my findings and reasons. The applicant has supplied short minutes of the orders for which he contends. 2 The respondents accept that some of those orders are appropriate in the light of the findings in the earlier judgment but oppose others. On 27 September 2007, the parties made oral submissions in support of their respective positions. The background to the matter is set out in sufficient detail in my earlier reasons and I do not propose to repeat it here. I propose to discuss only those orders that are in contention. The earlier judgment sufficiently explains the basis for those about which there is substantial agreement. 3 The first three orders proposed by the applicant are declarations that reflect my findings that: (a) the first respondent engaged in conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) in making certain representations to the applicant in relation to the purchase of the East Village Hotel in Darlinghurst, NSW; (b) the second respondent engaged in conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW) in making representations to the applicant in relation to the purchase of the hotel; and (c) at all material times, the applicant had a 15% share in the partnership operating the East Village Hotel business.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
It is said on behalf of Mr Temple that these are proceedings for declarations of contraventions of the WR Act and the BCII Act and the imposition of pecuniary penalties. They are civil not criminal and the civil rules of evidence and procedure apply, albeit there is a need for "exactness of truth": Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362-363 applied by Austen J in Australian Securities and Investments Commission v Vines (2003) 21 ACLC 159.
Case: Australian Securities and Investments Commission v Vines Z(2003) 21 ACLC 159
Outcome: cited
It is said on behalf of Mr Temple that these are proceedings for declarations of contraventions of the WR Act and the BCII Act and the imposition of pecuniary penalties. They are civil not criminal and the civil rules of evidence and procedure apply, albeit there is a need for "exactness of truth": Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362-363 applied by Austen J in Australian Securities and Investments Commission v Vines (2003) 21 ACLC 159.
Case: A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247
Outcome: cited
It is submitted for Mr Temple that the respondents' case as pleaded simply puts him to proof. He says there is no privilege against self-incrimination or exposure to a penalty available to either the CFMEU or the CFMEUW. Having regard to the pleading, he is entitled to proceed on the basis that no respondent seeks to propound a positive defence not just that "no positive defence is currently advanced" as the respondents say in their joint submissions. Reliance is placed upon the observations of Gyles J in A &amp; L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 at [17]. When the respondents suggest for the first time in their written submissions that there are "very live issues of credit [as to which] the applicant's case will succeed or fail" the applicant submits that it is hard to place much weight on such a statement in view of the absence of even a positive denial of a single fact pleaded against any respondent. 17 There is no doubt that the Court may permit the evidence-in-chief of a witness in civil proceedings to be given by that witness orally swearing to, or affirming, the truth of a statement previously made. It is immaterial whether the statement previously made was by way of a witness statement or the transcript of answers given to questions put in the course of an oral examination whether under some compulsory process or not. It follows that a witness may by way of affidavit swear to or affirm the truth of a previous statement exhibited to the affidavit or to the truth of a transcript of a previous interview so exhibited. The affidavit may be read in evidence provided that the witness is available, if required, for cross examination.
Case: Platcher v Joseph [2004] FCAFC 68
Outcome: cited
In Platcher v Joseph [2004] FCAFC 68 , Tamberlin and Emmett JJ accepted at [101] that when an affidavit of a witness affirmed the truth and accuracy of a transcript of evidence given in an examination under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth), the transcript of that interview was "potentially admissible". Weinberg J said (at [163]): The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. 21 Buchanan J referred to s 37 of the Evidence Act 1995 (Cth) and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. A question arose whether the statements adopted by the witnesses were hearsay within the meaning of s 59 of the Evidence Act . His Honour held that if they were they would fall within an exception to the hearsay rule in s 63 and not be inadmissible for that reason. He referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act . I respectfully agree with his Honour's observations. His Honour rejected the objection taken to the admissibility of the statements. He also rejected a separate submission that the Court should require the evidence to be given orally in any event. He saw no reason to depart from earlier directions that the conduct of the proceedings be by affidavit. His Honour said (at [4 ]): In the circumstances, I will admit the statements in question in the sense that I will not exclude them from the evidence upon the basis which has so far been argued. However, it follows that if the statements are to be treated as part of the evidence in chief, as I think they should be, then they will be subject to objections in the ordinary way upon some other foundation if that appears to be available. Such objections will need to be dealt with as they are taken. I reject the objection so far taken in a general way to the statements in question.
Case: Alfred v Lanscar [2007] FCA 833
Outcome: cited
Recently, a question very similar to that which arises in this case, arose before Buchanan J in an application for civil penalties by an Australian Building and Construction Commission inspector: Alfred v Lanscar [2007] FCA 833. As part of an investigation into alleged breaches of the WR Act statements were taken from a number of people. They were signed and witnessed. The Commission subsequently sought to rely upon affidavits sworn or affirmed by people from whom the statements were taken in which they deposed to the truth and accuracy of the statements and exhibited them to the affidavits. Eight statements adopted in that fashion were relied upon at the hearing before Buchanan J as part of evidence-in-chief in the applicant's case. 20 Buchanan J ruled that the witness statements were made admissible by their adoption in the affidavits. Although his ruling was made in the course of the hearing, his Honour subsequently reduced his reasons for decision to writing. 21 Buchanan J referred to s 37 of the Evidence Act 1995 (Cth) and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. A question arose whether the statements adopted by the witnesses were hearsay within the meaning of s 59 of the Evidence Act . His Honour held that if they were they would fall within an exception to the hearsay rule in s 63 and not be inadmissible for that reason. He referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act . I respectfully agree with his Honour's observations. His Honour rejected the objection taken to the admissibility of the statements. He also rejected a separate submission that the Court should require the evidence to be given orally in any event. He saw no reason to depart from earlier directions that the conduct of the proceedings be by affidavit. His Honour said (at [4 ]): In the circumstances, I will admit the statements in question in the sense that I will not exclude them from the evidence upon the basis which has so far been argued. However, it follows that if the statements are to be treated as part of the evidence in chief, as I think they should be, then they will be subject to objections in the ordinary way upon some other foundation if that appears to be available. Such objections will need to be dealt with as they are taken. I reject the objection so far taken in a general way to the statements in question.
Case: SZDDZ v MIMA [2006] FMCA 1174
Outcome: affirmed
This is an appeal from the Federal Magistrates Court: SZDDZ v Minister for Immigration &amp; Multicultural Affairs [2006] FMCA 1174. The appellant, a citizen of India, applied for a protection visa which was refused. That decision was affirmed by the Refugee Review Tribunal but the Tribunal's decision was set aside by a consent order of the Full Court. On the second hearing of the review by a Tribunal differently constituted the refusal of the appellant's application was again confirmed. 2 On the appeal to the Federal Magistrate, it appears that the grounds relied on were, first, the appellant did not have a fair hearing before the Tribunal and, secondly, that the Tribunal made a jurisdictional error when it "took advantage of the situation created by the interpreter" which led to the appellant putting himself in a "scary situation". In essence, the Magistrate found that there was no evidence to support the allegations of the appellant. I shall not repeat the full discussion of the appellant's claims by the Magistrate which are set out in his decision which is obtainable on the Internet.
Case: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
In any event, if the Tribunal wrongly assumed that the letter did not contain Rashed Khan Menon's telephone number that was not a jurisdictional error but an error made within jurisdiction. An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . 46 In my opinion, the Tribunal was entitled in this review to take the view that it would not know to whom it was speaking if it were to make the telephone calls. In those circumstances, the Tribunal would have had difficulty attaching much weight to the evidence, even if that evidence was obtained. Moreover, it was never made clear to the Tribunal what evidence it was required to obtain, if possible, from the two witnesses. 47 The appellant provided written submissions in support of the appeal and in both those submissions and orally before me, the appellant asserted that the Tribunal had erred under s 424A due to the inclusion of incorrect factual material in the s 424A letter it sent.
Case: Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59
Outcome: cited
That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] . 50 In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.
Case: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304
Outcome: cited
That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] .
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: cited
That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] . 50 In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.