mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Regina (Corner House Research) v Secretary for Trade and Industry [2005] 1 W.L.R. 2600
Outcome: cited
It is of some interest to note that maximum costs orders, also known as protective costs orders, are made in other jurisdictions within the discretion of the court. For example, in the United Kingdom the Court of Appeal has set out the discretionary considerations in Regina (Corner House Research) v Secretary for Trade and Industry [2005] 1 W.L.R. 2600 at [74] as whether: &#8226; the case is a public law case raising issues of general public importance. &#8226; the public interest requires that those issues be resolved. &#8226; the applicant has no private interest in the outcome of the case. &#8226; having regard to the financial resources of the applicant and the respondent and the amount of costs that are likely to be involved, it is fair and just to make the order. &#8226; if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
Case: Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509
Outcome: cited
The parties agree on many of the factors to be taken into account in the exercise of the Court's discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include: &#8226; the timing of the application ( Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]); &#8226; the complexity of the factual or legal issues raised in the proceedings ( Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J); &#8226; the amount of damages that the applicant seeks to recover ( Hanisch at 387) and the extent of any other remedies sought ( Flew at [48]); &#8226; whether the applicant's claims are arguable and not frivolous or vexatious ( Flew at [15]); &#8226; the undesirability of forcing the applicant to abandon the proceedings ( Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and &#8226; whether there is a public interest element to the case ( Woodlands at 146; Flew at [23], [47]). 53 It cannot be said that the case lacks complexity. As pointed out by Beazley J in Sacks at 511, the intention on the introduction of O 62A r 1 was to apply the rule principally to commercial litigation at the lower end of the scale in terms of complexity and the amount in dispute. That is, it was introduced to keep costs proportionate in low value litigation. The original object of O 62A r 1 as set out in a letter from the Chief Justice of the Federal Court to the President of the Law Council of Australia regarding the introduction of the rule, was to ' define a budget so that the management of the case might be tailored according to its economic limits ' (cf Sacks at 511, Flew at [7]). That, however, is not a limitation on the availability of an order. There is no reason why it should not apply, in appropriate situations, to cases that are somewhat complex.
Case: George Ward Steel v Kizkot (1989) 15 ACLR 464
Outcome: cited
support of its submission that the winding up order should be set aside, the Defendant relied upon the following statement by Hodgson J in George Ward Steel v Kizkot (1989) 15 ACLR 464 at 465: In my view, if an order winding up a company is made in the absence of the defendant company, and an application is brought promptly by the company, with notice being given to the liquidator, to the plaintiff and to any creditor who appeared at the hearing; and if the evidence shows an explanation for the non-appearance at the hearing and indicates solvency of the company; and if there is consent to setting aside, or at least non-opposition; and if the liquidator indicates that nothing in his investigations to date shows a reason for the company to be stopped from trading, then the court will normally set aside the order. His Honour was concerned with an application under Part 40 r 9(3) of the now superseded Supreme Court Rules 1970 (NSW) which was equivalent to O 35, r 7(2)(a). The application to set aside the winding up order was determined by his Honour within about two weeks of the winding up order being made. His Honour's reasons do not reveal the reason behind the Defendant's non-appearance. Hodgson J's decision was considered by Nicholson J in Registrar of Aboriginal Corporation v Murnkurni Women's Aboriginal Corporation (1995) 58 FCR 125 at 127-128. His Honour's reasons do not shed much light on the reason behind the respondent's failure to appear in that case, though it is apparent that the applicant had obtained an order for substituted service which was, as was accepted by the respondent in that case, properly effected. His Honour went on to say: It may not be that the dicta of Hodgson J in Kizkot and the principles relied upon for Murnkurni are necessarily in conflict. All that Hodgson J required was evidence which "indicates" solvency. He did not say that solvency was to be established as a fact. Certainly he must have accepted there should be evidence which indicates solvency in the sense of showing it to be arguable that the company was solvent. In my opinion the effect of the authorities is to require this Court to consider whether there is an arguable defence which in turn requires the Court to consider whether solvency is arguable. ... For the reasons given I consider that both the solvency and other aspects are arguable and that, accordingly, the application to set aside the order pursuant to FCR O 35, r 7(2)(a) should be granted. Hodgson J's decision in Kizkot was followed by Gyles J on several occasions: Deputy Commissioner of Taxation v Fairchild Development (in liq) [2006] FCA 714 and Deputy Commissioner of Taxation v Vallod Pty Ltd; in the matter of Vallod Pty Limited [2007] FCA 535. In the latter case Gyles J said (at [4]) that "Hodgson J's points are not, of course, a statutory formula but they are a useful checklist of things to at least take into account." Gyles J set aside the winding up order in that case within a week of it being made.
Case: Registrar of Aboriginal Corporation v Murnkurni Women's Aboriginal Corporation (1995) 58 FCR 125
Outcome: cited
J's decision was considered by Nicholson J in Registrar of Aboriginal Corporation v Murnkurni Women's Aboriginal Corporation (1995) 58 FCR 125 at 127-128. His Honour's reasons do not shed much light on the reason behind the respondent's failure to appear in that case, though it is apparent that the applicant had obtained an order for substituted service which was, as was accepted by the respondent in that case, properly effected. His Honour went on to say: It may not be that the dicta of Hodgson J in Kizkot and the principles relied upon for Murnkurni are necessarily in conflict. All that Hodgson J required was evidence which "indicates" solvency. He did not say that solvency was to be established as a fact. Certainly he must have accepted there should be evidence which indicates solvency in the sense of showing it to be arguable that the company was solvent. In my opinion the effect of the authorities is to require this Court to consider whether there is an arguable defence which in turn requires the Court to consider whether solvency is arguable. ... For the reasons given I consider that both the solvency and other aspects are arguable and that, accordingly, the application to set aside the order pursuant to FCR O 35, r 7(2)(a) should be granted.
Case: Deputy Commissioner of Taxation v Fairchild Development (in liq) [2006] FCA 714
Outcome: cited
J's decision in Kizkot was followed by Gyles J on several occasions: Deputy Commissioner of Taxation v Fairchild Development (in liq) [2006] FCA 714 and Deputy Commissioner of Taxation v Vallod Pty Ltd; in the matter of Vallod Pty Limited [2007] FCA 535. In the latter case Gyles J said (at [4]) that "Hodgson J's points are not, of course, a statutory formula but they are a useful checklist of things to at least take into account." Gyles J set aside the winding up order in that case within a week of it being made.
Case: Deputy Commissioner of Taxation v Vallod Pty Ltd; in the matter of Vallod Pty Limited [2007] FCA 535
Outcome: cited
J's decision in Kizkot was followed by Gyles J on several occasions: Deputy Commissioner of Taxation v Fairchild Development (in liq) [2006] FCA 714 and Deputy Commissioner of Taxation v Vallod Pty Ltd; in the matter of Vallod Pty Limited [2007] FCA 535. In the latter case Gyles J said (at [4]) that "Hodgson J's points are not, of course, a statutory formula but they are a useful checklist of things to at least take into account." Gyles J set aside the winding up order in that case within a week of it being made.
Case: Re United Medical Protection Limited (2003) ACSR 705
Outcome: applied
relevant principles governing the making of an order pursuant to s 482(1) are well settled and were summarised by Austin J in Re United Medical Protection Limited (2003) ACSR 705 at [30]. His Honour said: As to termination of a winding up, I was taken to Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22 at 26-7; Re Mascot Homes Furnishers Pty Ltd [1970] VR 593 at 598 and Mercy &amp; Sons Pty Ltd v Wanari Pty Ltd [2000] NSWSC 756 ; (2000) 35 ACSR 70 at [47] - [51] . Those cases show that in considering an application to terminate a court-ordered winding up under s 482 , the court has regard to the effect of the proposal on various categories of interests: the interests of creditors (including future creditors who might be prejudiced if the company is released from winding up in an encumbered state); the interests of the liquidator, particularly with respect costs; the interests of contributories; and the public interest (including the public interest in upholding commercial morality), the court taking the initial approach that insolvent companies should be wound up. I have taken the matters referred to by his Honour into account in considering whether to make an order terminating the winding-up of the Defendant. Subject to having its debt and the costs of the winding up proceedings paid, the Plaintiff consents to an order terminating the winding up of the Defendant. The Plaintiff has acknowledged that the debt has been paid. Likewise, subject to his costs of the winding up being paid, the Liquidator consents to such an order. There is also evidence before me that the Australian Securities Investment Commission has been notified of the application to terminate the winding up and that it does not wish to be heard in relation to that application. As to the public interest, I am satisfied that there are no public interest considerations that weigh against making an order terminating the winding up. I do not intend to imply that there are no ongoing issues to do with the management and records of the Defendant that still need to be attended to by the directors. I think there are. However, in my opinion these should be left to the directors of the Defendant and its newly appointed auditor.
Case: Arthur v Vaupotic Investments Pty Limited [2005] FCA 433
Outcome: cited
Recent authorities support the proposition that Order 35 does not require proof by way of evidence of the claim. It requires that on the face of the statement of claim there is a claim for relief sought and that the court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 per Nicholson J at [14] and Arthur v Vaupotic Investments Pty Limited [2005] FCA 433 ; cf Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36 at [49] , [57] [58].
Case: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856
Outcome: cited
Recent authorities support the proposition that Order 35 does not require proof by way of evidence of the claim. It requires that on the face of the statement of claim there is a claim for relief sought and that the court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 per Nicholson J at [14] and Arthur v Vaupotic Investments Pty Limited [2005] FCA 433 ; cf Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36 at [49] , [57] [58].
Case: Australian Securities Commission v McLeod (1994) 54 FCR 309
Outcome: referred to
It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 per Stone J.
Case: Commissioner of Taxation v Finn [1960] HCA 69 ; (1960) 103 CLR 165
Outcome: referred to
It was until recently well settled that there was no presumption upon default of the respondent of the correctness of the applicant's claims: see Commissioner of Taxation v Finn [1960] HCA 69 ; (1960) 103 CLR 165.
Case: Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664
Outcome: referred to
It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 per Stone J.
Case: Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36
Outcome: distinguished
Recent authorities support the proposition that Order 35 does not require proof by way of evidence of the claim. It requires that on the face of the statement of claim there is a claim for relief sought and that the court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 per Nicholson J at [14] and Arthur v Vaupotic Investments Pty Limited [2005] FCA 433 ; cf Wu v Avin Operations Pty Limited (ACN 076 956 913) [2006] FCA 36 at [49] , [57] [58].
Case: Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288
Outcome: referred to
It was not open to the court to make an order for default judgment except on the bringing of a motion supported by evidence as to the merits of the application: see Australian Securities Commission v McLeod (1994) 54 FCR 309 per Drummond J; see also for example Grey v Mango Prepaid Calling Cards Pty Limited [2004] FCA 1664 per Nicholson J, and Zomba Production Music v. Roadhouse Productions (2001) 190 ALR 288 per Stone J.
Case: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.
Case: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.
Case: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.
Case: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55
Outcome: cited
The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.
Case: Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311
Outcome: applied
Like the High Court, this Court has no inherent power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the court: Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311 , at 318. That case acknowledges the existence of an inherent power which would permit a court such as the Federal Court to prevent an abuse of its process by staying or dismissing an existing proceeding. The respondents have no need to call in aid this power as the upholding of their application under s 31A of the Federal Court of Australia Act evidences.
Case: National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895
Outcome: cited
Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 , National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J). 54 Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap .
Case: Granich and Associates v Yap [2004] FCA 1567
Outcome: cited
Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 , National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J). 54 Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap .