mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Colbung v Western Australia [2003] FCA 774
Outcome: cited
Worimi's case seems to be that, if the persons otherwise possessing native title interests have abandoned them, they are no longer identifiable as members of a community living under the relevant laws and customs. Worimi does not claim that, according to traditional laws and customs, individual rights or family rights (in the sense of Worimi, his wife and daughters) are recognised by traditional law and custom. This is not a case where Worimi claims that his immediate family hold native title rights by virtue of the membership of their family alone (cf Colbung v Western Australia [2003] FCA 774). He acknowledges that the Land is Worimi land. That is, according to traditional law and custom, the rights are held by Worimi people or the particular clan or group, such as the Garuahgal people. Whatever the precise identity of the people who possess such rights over the Land (see Hillig (No 2) at [20]-[22]), it is a group larger than Worimi and his family. If that is the case the family, by calling itself a native title claim group, does not establish that it is a "native title claim group" for the purposes of Worimi's entitlement to make the second application pursuant to s 61(1) of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ).
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
Mr Hillig accepts that he bears a heavy onus in seeking to strike out the proceedings. He does not rely on s 31A of the Federal Court of Australia Act 1976 (Cth). He submits that the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 is satisfied: the second application is so obviously untenable that it cannot possibly succeed. He points out that, as expressed in General Steel , the test is met where the case disclosed is one which the Court is satisfied cannot succeed and where it is manifest that to allow the pleading to stand would involve useless expense (see also Lindon v Commonwealth of Australia (No 2) [1996] HCA 14 ; (1996) 136 ALR 251 at 255 6).
Case: Landers v State of South Australia (2003) 128 FCR 49
Outcome: cited
If the evidence were to establish unequivocally that Worimi has not been authorised by the native title claim group, the application may be summarily dismissed for failure to comply with s 61 of the [2004] FCAFC 226 ; Act ( Bodney v Bropho (2004) 140 FCR 77 at [52] per Stone J). However, the application should only be dismissed where the claim as expressed is untenable and on the basis of the evidence most favourable to Worimi ( Landers v State of South Australia (2003) 128 FCR 49 at [7]).
Case: Lindon v Commonwealth of Australia (No 2) [1996] HCA 14 ; (1996) 136 ALR 251
Outcome: cited
Mr Hillig accepts that he bears a heavy onus in seeking to strike out the proceedings. He does not rely on s 31A of the Federal Court of Australia Act 1976 (Cth). He submits that the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129 is satisfied: the second application is so obviously untenable that it cannot possibly succeed. He points out that, as expressed in General Steel , the test is met where the case disclosed is one which the Court is satisfied cannot succeed and where it is manifest that to allow the pleading to stand would involve useless expense (see also Lindon v Commonwealth of Australia (No 2) [1996] HCA 14 ; (1996) 136 ALR 251 at 255 6).
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
Worimi's case seems to be that, if the persons otherwise possessing native title interests have abandoned them, they are no longer identifiable as members of a community living under the relevant laws and customs. Worimi does not claim that, according to traditional laws and customs, individual rights or family rights (in the sense of Worimi, his wife and daughters) are recognised by traditional law and custom. This is not a case where Worimi claims that his immediate family hold native title rights by virtue of the membership of their family alone (cf Colbung v Western Australia [2003] FCA 774). He acknowledges that the Land is Worimi land. That is, according to traditional law and custom, the rights are held by Worimi people or the particular clan or group, such as the Garuahgal people. Whatever the precise identity of the people who possess such rights over the Land (see Hillig (No 2) at [20]-[22]), it is a group larger than Worimi and his family. If that is the case the family, by calling itself a native title claim group, does not establish that it is a "native title claim group" for the purposes of Worimi's entitlement to make the second application pursuant to s 61(1) of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ).
Case: Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 396 ; (2002) 125 FCR 488
Outcome: referred to
categories of costs in which a court may order a non-party to pay costs are not closed: Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 396 ; (2002) 125 FCR 488. In that case, at [62] the Court said: There are certain categories of cases in which the jurisdiction to award costs against a non-party has been exercised, if not frequently, then with some degree of regularity. One such category is where the non-party is considered to be the "real party" to the litigation: Knight v Special Assets at 188 per Mason CJ and Dean J. Another is where the non-party is a legal representative of a party to the proceedings. A costs order may be made, for example, against a solicitor in consequence of his or her conduct in the litigation: Caboolture Park at 231. While s 43 of the Federal Court Act empowers the Court to make a costs order against a legal representative of a party, a second source of jurisdiction is the "implied", "accrued" or "inherent" jurisdiction of the Court over its own officers: Caboolture Park at 231.
Case: Australian Securities Commission v Australian Home Investments Ltd (1993) 116 ALR 523
Outcome: applied
is not possible to determine whether the statutory demands were in fact ever served on the defendants in accordance with the Act. Mr Byrnes contends they were and the defendants contend they were not received. That was an issue to be determined at the trial but the proceedings were dismissed for the reasons given. I do not think, in the absence of hearing the witnesses whose evidence is relevant to this issue and particularly Mr Byrnes, the issue can be resolved. Moreover, the resolution of that issue would be undesirable after the proceedings were dismissed at the behest of the defendants: Australian Securities Commission v Australian Home Investments Ltd (1993) 116 ALR 523 at 530.
Case: Baillieu Knight Frank v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Outcome: cited
will be an abuse of process if a creditor brings a winding up proceeding under Pt 5.4 against a solvent company as a means of putting pressure on the company to pay its debt: Baillieu Knight Frank v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 ; Re A Company (No 0012209 of 1991) [1992] 2 All ER 797.
Case: Bent v Gough [1992] FCA 267 ; (1992) 36 FCR 204
Outcome: cited
Bent v Gough [1992] FCA 267 ; (1992) 36 FCR 204 , the Full Court of the Federal Court determined that s 32 of the Bankruptcy Act empowered the Court to make an order for costs against the liquidator who was not a party in the bankruptcy proceeding.
Case: Bond Corporation Holdings Ltd (1990) 1 WAR 465
Outcome: cited
finding is enough, it seems to me, to make the order sought by the defendants that the plaintiffs pay the defendants' costs on an indemnity basis: In the matter of Bond Corporation Holdings Ltd (1990) 1 WAR 465 ; Packer v Meagher (1984) 3 NSWLR 486. In Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 , Davies J said at [7]: ... it is not open to an individual Judge to award costs having regard to his own view as to the adequacy of party/party costs so fixed. An award of costs on an indemnity basis may be made only in a special case, where the circumstances justify departure from the ordinary principle. The circumstances must be such as to justify an award indemnifying the successful party in respect of all of the costs incurred, save only as to those costs which are unreasonable in amount. The very nature of the award of costs on an indemnity basis gives a guide to the type of case in which such an award is appropriate. Thus, indemnity costs may be awarded where unsuccessful proceedings have been brought and prosecuted, not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose. However, there are further reasons for making the orders.
Case: Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 149 FLR 179
Outcome: cited
may be an abuse of process if the creditor who has served a statutory demand has knowledge that the company is unaware of the statutory demand but persists with the winding up proceedings: Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15 ; (1999) 149 FLR 179.
Case: Construction Enterprises Pty Ltd v Lafarge Plasterboard Pty Ltd [2002] NTSC 21
Outcome: cited
defendants relied upon a decision of Master Coulehan of the Supreme Court of the Northern Territory in Construction Enterprises Pty Ltd v Lafarge Plasterboard Pty Ltd [2002] NTSC 21 for the proposition that an order for costs could be made against solicitors without making the solicitors parties and notwithstanding s 1335(2) of the Corporations Act . That case concerned an application to set aside a statutory demand pursuant to s 459G of the Corporations Act . Shortly after the proceeding was commenced, the plaintiff was wound up by order of the Supreme Court of New South Wales. The defendant sought costs against the plaintiff's solicitor who had pursued the application on the part of the plaintiff, notwithstanding that the plaintiff had been wound up before the hearing of the application and notwithstanding that the liquidator was unaware of the application.
Case: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265
Outcome: referred to
J described the purpose of Pt 5.4 of the Act in David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 270: The provisions of the new Pt 5.4 constitute a legislative scheme for quick resolution of the issue of solvency and the determination of whether the company should be wound up without the interposition of disputes about debts, unless they are raised promptly. A winding up proceeding which is brought for a purpose other than the purpose identified may amount to an abuse of process: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-522. A winding up proceeding brought for a collateral purpose will be an abuse of process and will attract the Court's implied power to prevent abuse of its own processes: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 279.
Case: Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429
Outcome: cited
follows that this Court has the power to award costs against a person not a party to the proceedings: see also Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429. The non-parties argued that the Court could not now make an order that they pay costs because the proceedings had been dismissed by my orders made on 27 August 2008.
Case: Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 
Outcome: applied
Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 , Finkelstein J said at 287: For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party. Debelle J agreed with the decision in Gribbles Pathology Pty Ltd v Health Insurance Commission 80 FCR 283 in Boscaini v Corporation of Kensington and Norwood [1999] SASC 327 and said at [22]: I immediately acknowledge the assistance of Hill J but suggest that proposition (3) is of limited assistance. The fact that a party has not conducted himself reasonably may disentitle him to costs. But, beyond that, the reasonableness of the conduct of the parties is not likely to assist in determining whether the applicant should recover his costs. The real question is whether the applicant had reasonable prospects of success. It seems preferable, therefore, to express proposition (3) in different terms. Finkelstein J cast some doubt on the third principle referred to by Hill J. I do not need to decide whether I agree with the proviso mentioned by Finkelstein J because, in my opinion, at the very least this is one case where the issues are sufficiently clear, in the absence of a hearing, for orders for costs to be made. The plaintiffs' behaviour, which was demonstrated by Mr Byrnes' emails and correspondence generally prior to the commencement of proceedings, was quite unreasonable. Mr Byrnes behaved like a bully as he claimed to be. He threatened the defendants and Mr Harris with all sorts of commercial harm. His communications were calculated to induce fear into the defendants. His threats, if carried out, would have ruined the defendants in circumstances where he knew the defendants took issue with the debts. His actions were taken for the benefit of the plaintiffs and for the assignors, Cobra and Contor. The threats which were made prior to the proceedings commencing indicate that the proceedings were to be used for a collateral purpose; namely, the recovery of a debt, rather than for the purpose for which the proceedings were designed; namely, the winding up of an insolvent corporation. The proceedings were an abuse of the Court's processes.
Case: Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400
Outcome: referred to
reasons should be read in conjunction with the reasons given today in action number NSD 584 of 2008 in which the defendants to these proceedings are the plaintiffs and the plaintiffs in these proceedings are the defendants: Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400. This is an application by the defendants for the costs of these proceedings. It is necessary to trace the history of the proceedings before identifying against whom the defendants seek orders for costs and the particular orders sought. THE PROCEEDINGS Both these proceedings were commenced in the New South Wales Registry of this Court on 28 March 2008 by the plaintiffs seeking the winding up of the two defendants in the separate proceedings in insolvency pursuant to s 459P of the Corporations Act 2001 (Cth) (the Corporations Act ). In both proceedings the plaintiffs claimed to be creditors of the defendants and relied upon the defendant's failure to comply with two statutory demands. They claimed that debts had been assigned to them. As I have said in [2] of these reasons, these reasons should be read with the reasons in Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400 given today. I have made no order for costs in that proceeding for the reasons given. However, the affidavit sworn by Peter William Harris on 28 April 2008 which was filed in that other proceeding was used extensively in these proceedings and for the purpose of these reasons. Indeed, the defendants filed an affidavit in each of these proceedings sworn by Mr Harris on the same day in which he referred to and relied upon his affidavit sworn in the other proceeding. In that way the affidavit was used in these proceedings. It would be appropriate to allow the defendants the costs of that affidavit even though it was filed in the other proceeding because it contained the relevant information relied upon by the defendants for the defence of these proceedings. The costs which the defendants are entitled to recover on the orders in these proceedings shall include the costs of the preparation, swearing and filing of Mr Harris' affidavit sworn on 28 April 2008 and filed in action number NSD 584 of 2008.
Case: L &amp; D Audio Acoustics Pty Ltd v Pioneer Electronic Australia Pty Ltd (1982) 7 ACLR 180 
Outcome: referred to
winding up procedure is not to be used for the purpose of compelling a solvent company to pay a disputed debt: Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216. Nor is it to be used for the purpose of coercing a company into paying a debt without allowing the company a reasonable opportunity to ascertain that the debt is payable: L &amp; D Audio Acoustics Pty Ltd v Pioneer Electronics Australia Pty Ltd (1982) 7 ACLR 180 at 183. In L &amp; D Audio Acoustics Pty Ltd v Pioneer Electronic Australia Pty Ltd (1982) 7 ACLR 180 , McLelland J said at 183: Proceedings by a person as creditor for the winding up of a company on the ground that it is unable to pay its debts will ordinarily be held to be an abuse of process: (1) if the winding up proceedings are bound to fail eg if it is clear that the applicant will not be able to prove that he is a creditor within the meaning of s 363(1)(b) of the Code, or will not be able to prove that the company is unable to pay its debts within the meaning of s 364(1)(e); (2) if the application is made for some improper purpose eg if the applicant is seeking to use the winding up proceedings to coerce a company into paying an alleged debt without affording the company a reasonable opportunity to ascertain or have it established that the debt is properly payable; or (3) if issues will arise in the winding up proceedings of a kind inappropriate for determination in such proceedings eg a substantial contest as to the existence or enforceability of a debt relied on by the applicant, which should properly be resolved in separate proceedings brought for that purpose. The question to be determined when it is asserted that the proceedings constitute an abuse of process is the purpose for which the proceedings have been brought. If the proceedings have been brought for an ulterior or collateral purpose, then the proceedings are an abuse of the Court's processes. The party who has initiated the proceedings may then be liable to pay the costs of the party against whom the proceedings were brought on an indemnity basis. The defendants' claims for indemnity costs against the plaintiffs and the non-parties necessitate an examination of the facts and circumstances giving rise to the bringing of the winding up applications and the circumstances which transpired after their commencement.
Case: Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Ltd (No 2) [1998] QSC 18 ; (1999) 1 Qd R 518
Outcome: applied
Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Ltd (No 2) [1998] QSC 18 ; (1999) 1 Qd R 518 , Shepherdson J identified categories of cases where it might be appropriate to make an order for costs against a non-party. He said at 545: Where a person has some management of the action e.g. a director of an insolvent company who causes the company improperly to prosecute or defend a proceeding (191). Where a person has maintained or financed the action (citing Singh v. Observer Ltd [1989] 2 All E.R. 751). Balcombe L.J. was a member of the Court of Appeal in each of Bahai v. Rashidian and Symphony Group and in Symphony Group went on to say that he accepted that the categories which he had set out were neither rigid nor closed. To the above two categories of non-parties against whom costs orders may be made the following can be added: (a) Where the unsuccessful party is a corporation (as is the case here) the director or directors who have the right to control the corporation; ( Oz B and S Pty Ltd v. Elders IXL Ltd [1993] FCA 371 ; (1993) 117 A.L.R. 128 (Einfeld J.); Re Land and Property Trust Co. Plc. [1991] 1 W.L.R. 601 at 604-605 and H. Leverton Ltd v. Crawford Offshore (Exploration) Services Ltd unreported decision on costs of Garland J. in Queens Bench Division dated 11 October 1996). (b) In the situation of a party to litigation who was an insolvent person or a man of straw, a person who has played an active part in the conduct of the litigation and who has an interest in the subject matter of the litigation ( Knight v. F.P. Special Assets Limited at 193 in a passage I set out earlier in these reasons). (c) Where the non-party is the effective litigant standing behind the actual party Knight v. F.P. Special Assets Limited at 202 (per Dawson J.). (d) Where the non-party is funding or otherwise financially assisting the unsuccessful party to the litigation and stands to benefit if that party has been successful ( Re Foster; Ex parte Foster v. Duus (1994) 121 A.L.R. 494 at 503; (Einfeld J.) H. Leverton Ltd v. Crawford Offshore (Exploration) Services Ltd) . (e) Where a non-party has supported the unsuccessful party and has done so acting in bad faith towards the other parties and towards the court such as by giving false testimony or forging documents or preventing relevant documents being discovered ( H. Leverton Ltd v. Crawford Offshore (Exploration) Services Ltd ). As I have already said, I am not satisfied that either of the plaintiffs are in a position to satisfy an order for indemnity costs which is the order I propose to make against them. As I have already said, CBH's financial position is that Mrs Byrnes would be in a position to cause CBH not to be able to pay costs if she called upon the amount owing to her. Dr Low has not descended into advising the Court of the financial position of Alpha. In my opinion, the plaintiffs may well be incapable of satisfying the orders for costs which are to be made against them.
Case: Packer v Meagher (1984) 3 NSWLR 486
Outcome: cited
finding is enough, it seems to me, to make the order sought by the defendants that the plaintiffs pay the defendants' costs on an indemnity basis: In the matter of Bond Corporation Holdings Ltd (1990) 1 WAR 465 ; Packer v Meagher (1984) 3 NSWLR 486. In Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 , Davies J said at [7]: ... it is not open to an individual Judge to award costs having regard to his own view as to the adequacy of party/party costs so fixed. An award of costs on an indemnity basis may be made only in a special case, where the circumstances justify departure from the ordinary principle. The circumstances must be such as to justify an award indemnifying the successful party in respect of all of the costs incurred, save only as to those costs which are unreasonable in amount. The very nature of the award of costs on an indemnity basis gives a guide to the type of case in which such an award is appropriate. Thus, indemnity costs may be awarded where unsuccessful proceedings have been brought and prosecuted, not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose. However, there are further reasons for making the orders.