mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150
Outcome: followed
only issue which might be controversial is the observation of Slade J in Conway v Petronious Clothing Co Ltd , that the court has a discretion whether or not to allow inspection. In Berlei Hestia (NZ) Ltd v Fernyhough [1980] 2 NZLR 150 , Mahon J rejected the proposition that the court had a discretion whether or not to permit a director to have access to the books of the Company. In Berlei Hestia (NZ) Ltd v Fernyhough (supra), Mahon J at 163 disagreed with the conclusion of Slade J that there was a discretion as to whether or not a court would, acting under common law principles, permit a director to have access to corporate records and accounts. Mahon J said at 163: "The correct construction of the authorities relied upon by Slade J seems to me to be that the right of inspection is unqualified, but that where it is proved that a director is acting or is about to act in breach of his fiduciary duty to the company, and intends to aid that process by inspecting the books, then his right to inspection disappears." (see Company Directors: Principles of Law and Corporate Governance, Austin, Ford and Ramsay (2005), 193, [4.13]). Mahon J also said in Berlei Hestia (NZ) Ltd v Fernyhough (supra): "In other words, in order to restrain a director from exercising his right of access to corporate information, it must be proved, either from his words or conduct, that there in fact exists an intention on the part of the director to use the information not for the benefit of the company and the shareholders but for the benefit, wholly or in part, of a competitor." I am satisfied, consistently with common law principles, that Mr Campbell should be entitled to have access to, and should be allowed to inspect, all the records of the Company held by Computershare and also the records of the Company that relate to the share issues. I should add that not only should Mr Campbell have that right of access and inspection, also each and every director of the Company should have it. I do not consider on the material before me that it can be said that there is an intention on the part of Mr Campbell to use the information, not for the benefit of the Company and the shareholders but for the benefit wholly or in part of a competitor, adopting the words of Mahon J. Further, I am not satisfied that by having access to those records and inspecting them Mr Campbell is acting, or is about to act, in breach of his fiduciary duty to the Company and intends to aid that process by inspecting the books.
Case: Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73
Outcome: followed
v Ross (supra) was also followed by De Jersey J, as he then was, in Kriewaldt v Independent Direction Ltd (1996) 14 ACLC 73 , where at 75, his Honour said: "A director obviously has a right of access to company documents to facilitate the performance of his or her duty, and that carries with it a right to make copies. See Edman v Ross and McGee v Sanders [1991] FCA 554 ; (1991) 32 FCR 397 , 405".
Case: Intercapital Holdings Ltd v MEH Ltd (1988) 13 ACLR 595
Outcome: cited
is important to emphasise that on this application, having regard to the fact that no parties have been cross-examined, and that the matter has been brought on as a matter of urgency, that I form no view as to the merits or demerits of the matters raised by Mr Campbell or Mr Pursell. Nevertheless, I am satisfied, borrowing from the learning on s 247A of the Act, that there is a case for investigation: Intercapital Holdings Ltd v MEH Ltd (1988) 13 ACLR 595 ; Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 15 ACLR 151.
Case: Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 15 ACLR 151
Outcome: cited
is important to emphasise that on this application, having regard to the fact that no parties have been cross-examined, and that the matter has been brought on as a matter of urgency, that I form no view as to the merits or demerits of the matters raised by Mr Campbell or Mr Pursell. Nevertheless, I am satisfied, borrowing from the learning on s 247A of the Act, that there is a case for investigation: Intercapital Holdings Ltd v MEH Ltd (1988) 13 ACLR 595 ; Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (1989) 15 ACLR 151.
Case: Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245
Outcome: followed
principles in relation to the proper interpretation of s 247A have been well established and are not in dispute. Mr Campbell must satisfy me that he is entitled to inspect the books because the information sought relates to matters that he as a shareholder ought to be informed of by the Company: Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245 at 248. It is also clear that provided Mr Campbell's primary or dominant purpose for which the inspection is sought is a proper purpose, a subsidiary purpose for some other benefit is not relevant: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474.
Case: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474
Outcome: followed
principles in relation to the proper interpretation of s 247A have been well established and are not in dispute. Mr Campbell must satisfy me that he is entitled to inspect the books because the information sought relates to matters that he as a shareholder ought to be informed of by the Company: Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245 at 248. It is also clear that provided Mr Campbell's primary or dominant purpose for which the inspection is sought is a proper purpose, a subsidiary purpose for some other benefit is not relevant: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474.
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407
Outcome: considered
If only out of an abundance of caution, I have also expressly considered the pre-hearing steps that were taken by the Tribunal. The following passage from the joint judgment of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 , with which Gyles J relevantly agreed, is apt. I am reading from paras 15 and 16: The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. . . . They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. . . . s 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. 15 Their Honours continued, speaking of s 420 of the Migration Act : That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420 , 425A , 426A , 441A and 441C appear) must be read as a whole. Sections 425A , 426A , 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence. 16 That is what occurred in this instance. I am satisfied that the invitation to comment letter sent by the Tribunal met the requirements of s 424A of the Migration Act . I am also satisfied that the Tribunal sent, in good time, and in the form and manner required by the Migration Act , an invitation to attend a hearing. 17 As to the merits of the appeal itself, they amount, in essence, to a contention that the appeal should be allowed because the Federal Magistrate failed to find jurisdictional error on one or more of the grounds of appeal specified. 18 In respect of the first ground it is abundantly clear from the reasons of the Tribunal that the Tribunal expressly considered the risk which the Appellant might face were she to be returned to China. It just so happens that the Tribunal was not satisfied that such a risk was presented. The Tribunal was not obliged to act just upon the statement which the Appellant had annexed to her review application, or to accept it uncritically. The same applies to the appeal ground which alleges that the Tribunal failed to accept that the Appellant is a Falun Gong practitioner.
Case: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited [2009] FCA 1220
Outcome: considered
recently published my reasons in this matter and directed that the parties bring in draft Minutes of Orders: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Limited [2009] FCA 1220. While I gave them the opportunity to put on submissions on costs, I indicated my then present inclination was to make no order as to costs. That view reflected my appreciation of the balance of wins and losses on disputed issues and claims made in the proceedings viewed as a whole. I need not reiterate the nature of the claims and cross-claims in any detail other than to say that, a discrete cross-claim for breach of confidence apart, collectively the various claims fell broadly into two classes. One large class related to claims for alleged breaches, and for wrongful repudiation, of a distribution agreement. These claims were surrounded by the predictable, satellite Trade Practices Act claims. The other class of claims related to intellectual property. The principal claims here related to trade marks owned by AMC and to breach of AMC's copyright although the latter both was surrounded by satellite claims such as passing off and was collaterally attacked initially in a Trade Practices Act claim (later abandoned by Hamilton). My findings on AMC's claims resulted in my dismissal of all of its intellectual property related claims. On the contract claims I found Hamilton to be in breach of the Distribution Agreement in several respects but only nominal damages were awarded.
Case: Timms v Clift [1997] QCA 61 ; [1998] 2 Qd R 100
Outcome: cited
narrative rather illustrates that while there were in substance two major areas of dispute between the parties, the parties' real successes were essentially defensive ones. It is appropriate to say, in my view, that as a matter of substance and reality, Hamilton won the claim. It is equally appropriate to say that the discrete breach of confidence claim apart, AMC won the cross-claim: cf Timms v Clift [1997] QCA 61 ; [1998] 2 Qd R 100 at 107. This outcome needless to say helped inform the inclination I foreshadowed as to an appropriate costs order.
Case: MGICA (1992) Pty Ltd v Kenny &amp; Good Pty Ltd (1996) 70 FCR 236
Outcome: cited
is well accepted, the non-acceptance of a Calderbank offer can be a relevant matter for consideration on the question whether the discretion to order costs should be exercised on an indemnity basis rather than in accordance with the Court's usual practice of ordering party and party costs, if its non-acceptance is followed by a result to the offeree which is less favourable than the offer made: see MGICA (1992) Pty Ltd v Kenny &amp; Good Pty Ltd (1996) 70 FCR 236 ; on the primacy of the ordinary practice see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 ; and see generally on Calderbank offers, Dal Pont, Law of Costs , [13.46]-[13.69] (2 nd ed, 2009).
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: cited
is well accepted, the non-acceptance of a Calderbank offer can be a relevant matter for consideration on the question whether the discretion to order costs should be exercised on an indemnity basis rather than in accordance with the Court's usual practice of ordering party and party costs, if its non-acceptance is followed by a result to the offeree which is less favourable than the offer made: see MGICA (1992) Pty Ltd v Kenny &amp; Good Pty Ltd (1996) 70 FCR 236 ; on the primacy of the ordinary practice see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 ; and see generally on Calderbank offers, Dal Pont, Law of Costs , [13.46]-[13.69] (2 nd ed, 2009).
Case: University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360
Outcome: cited
significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at 361; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] .
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55
Outcome: cited
significance for costs purposes to be attributed to a rejected Calderbank offer falls, increasingly, for determination by reference to criteria of reasonableness: Was the offer a reasonable one in the circumstances? Was its rejection unreasonable when viewed in light of the circumstances existing at the time of its rejection? See eg University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at 361; Dal Pont at [13.58]. In making that determination, the circumstances of the litigation and the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] .
Case: Smith v 600 Machinery Australia Pty Ltd [1996] FCA 1029 
Outcome: cited
Mansfield J indicated in Smith v 600 Machinery Australia Pty Ltd [1996] FCA 1029 , O 23 of the Federal Court Rules provides a structure which encourages the parties throughout a proceeding to offer and to consider a fair and reasonable compromise of their proceeding while also providing a party with the means of protecting its position in relation to costs against an opponent with unrealistic expectations of the proceeding's likely outcome. The Rules prescribes both the formalities for an offer to be characterised as one made for O 23 purposes and the costs consequences of unaccepted offers. Relevantly for present purposes O 23 r 11(5) provides: (5) If: (a) an offer is made by a respondent and not accepted by the applicant; and (b) the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer; then, unless the Court otherwise orders: (c) the applicant is entitled to an order that the respondent pay the applicant's costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and (d) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis.
Case: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 
Outcome: applied
is created a rebuttable presumption of indemnity costs, it then being incumbent on the applicant to show reason why the Court should "otherwise order". As Hely J indicated in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at [17]: ... the prima facie position should only be departed from for proper reasons which, in general, only arise in an exceptional case. See also Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40. While emphasising that it is impossible to state exhaustively the circumstances in which a discretion to the contrary might be exercised, it is established that the fact that an applicant acted reasonably in rejecting an offer of compromise is not itself a sufficient reason to displace the operation of the rule: Futuretronics at [11]. As Dal Pont has indicated (at [13.17]): ... a party who rejects an offer cannot reasonably compain if, due to [the] risks and vicissitudes [of litigation], his or her judgment proves unsound.
Case: Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40
Outcome: cited
is created a rebuttable presumption of indemnity costs, it then being incumbent on the applicant to show reason why the Court should "otherwise order". As Hely J indicated in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at [17]: ... the prima facie position should only be departed from for proper reasons which, in general, only arise in an exceptional case. See also Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40. While emphasising that it is impossible to state exhaustively the circumstances in which a discretion to the contrary might be exercised, it is established that the fact that an applicant acted reasonably in rejecting an offer of compromise is not itself a sufficient reason to displace the operation of the rule: Futuretronics at [11]. As Dal Pont has indicated (at [13.17]): ... a party who rejects an offer cannot reasonably compain if, due to [the] risks and vicissitudes [of litigation], his or her judgment proves unsound.
Case: Sunlec International Ltd v Carroll Australasia Pty Ltd [2001] WASC 354
Outcome: cited
would note in passing AMC made a further counter-offer on 30 June 2000 in which (inter alia) it reduced the monetary sum it required to be paid to $1,250,000. See also Sunlec International Ltd v Carroll Australasia Pty Ltd [2001] WASC 354 at [14] . At no stage in this matter prior to the publication of my reasons in the principal proceedings had AMC sought declaratory relief in relation to its proprietorship and beneficial ownership of the Fuyunhon and Tuotoning marks or to its ownership of the copyright in the Hong Kong packaging and the English language product indications for Urederm. While fact findings to the above effect in relation to the trade marks are implicit in my reasons and are explicit in relation to copyright ownership, I am not prepared now to make declarations to the above effect as AMC now seeks: on the potential significance of injunctions and declarations for the purposes of the O 23 r 11(5) comparison see Sunlec International at [16]. I will later return to this. The second matter to be noted arises from the fact that the O 23 offer related only to AMC's claim and not to Hamilton's cross-claim. This split could well be perceived as a tactical manoeuvre given that the cross-claim asserted Hamilton's entitlement to AMC's trade marks. A decision by AMC so to agree to split the respective proceedings, in my view, was not to be expected. It was, in the context of the litigation, quite improbable.
Case: Digga Australia Pty Ltd v Norm Engineering Pty Ltd (No 2) [2008] FCAFC 76
Outcome: applied
are two additional matters that need to be noted. First, the comparison which O 23 r 11(5) requires is between the "judgment on the claim to which the offer relates" and "the terms of the offer". If the "judgment" is less favourable than the offer, the presumption arises. As was observed by the Full Court in Digga Australia Pty Ltd v Norm Engineering Pty Ltd (No 2) [2008] FCAFC 76 at [20] : The reference in the rule to "judgment" directs attention to "a judgment, decree or order ...": see s 46 of the Acts Interpretation Act 1901 (Cth); s 13 of the Legislative Instruments Act 2003 (Cth); s 4 ("judgment") of the Federal Court of Australia Act 1976 (Cth). We do not think that the comparison between the judgment obtained and the terms of the offer to which O 23 r 11(5) refers embraces a reference to findings made in the reasons for judgment.
Case: Smith v Madden [1946] HCA 19 ; (1946) 73 CLR 129
Outcome: applied
principle to be applied to the taxation of costs in such cases was stated by Dixon J in Smith v Madden [1946] HCA 19 ; (1946) 73 CLR 129 at 133: In such a case the taxation of the costs of the action and of the counterclaim is governed by the principle that the party receiving the costs of the claim should recover the general costs and whatever was reasonably incurred in bringing and maintaining or defending the action, as the case may be, considered as if there had been no counterclaim, and that the party receiving the costs of the counterclaim should recover the further or increased costs reasonably incurred in bringing and maintaining or defending the counterclaim. Nonetheless, his Honour acknowledged that where the successful (or unsuccessful) party on the claim or the counterclaim was not successful (or unsuccessful) on all issues, it may be appropriate to reflect this in any cost orders made by, for example, costs according to success or failure on costs issues in the claim or counterclaim (but not as between them: at 134-136) or by making a percentage or apportionment order in relation to the costs of the claim or counterclaim: at 133; and see Dal Pont [8.4]. Though they could be said, if only for reasons of their timing, to raise slightly different issues, I intend to treat the two O 23 offers together the more so as the change in the offer amount made is not material in the view I take of the matter.
Case: Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926
Outcome: applied
relief sought by AMC in its Further Amended Statement Claim sought declarations and orders in relation to the terms and effect of particular contractual provisions, rectification and damages for breach of contract, damages and injunctive relief at law and/or under the TP Act for, variously, misleading or deceptive conduct, passing off, copyright infringement and conversion as well as other ancillary relief. In light of my conclusions, it cannot be doubted that the judgment on AMC's claim will be less favourable to it than either of the offers made. In relation to the contractual claims for damages for breach of contract arising out of the parallel importation claim and for wrongful repudiation, AMC was claiming substantial damages. In relation to the parallel importation claim, only nominal damages were awarded. Given the apparent object of the claim made was to secure substantial damages and was not to establish a legal right irrespective of the monetary relief awarded, I do not consider that AMC could properly be regarded as having been successful on this issue for costs purposes. As was said in the Full Court in Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926 at 11-12: An award of nominal damages ought not today be regarded as a "peg on which to hang costs": cf Beaumont v Greathead [1846] EngR 257 ; (1846) 2 CB 494 at 499; see McGregor on Damages , para404-para405, Sweet &amp; Maxwell, London, (1988, 15 th ed); see also Burrows, Remedies for Tort and Breach of Contract , 269-270, Butterworths, London (2 nd ed 1994). See also Mid-City Skin Cancer &amp; Laser Centre v Zahedi-Anarak [2006] NSWSC 1149 at [48] - [52] ; Dal Pont, at [8.35].