mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595
Outcome: cited
as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following:
Case: Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39
Outcome: cited
and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.
Case: McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366
Outcome: cited
and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.
Case: Murphy v Young &amp; Co's Brewery plc [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591
Outcome: cited
circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight Third, while it is certainly the case that the Court may be receptive to an application for non-party costs against a third party whose conduct has promoted the litigation ( Arundel [2001] HCA 26 ; [2001] 179 ALR 406 at 414) or can be characterised as having been that of wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatsoever ( Murphy v Young &amp; Co's Brewery [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1601, Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414), there is no evidence of such intermeddling by Mrs Tracy in this case. So, for example, I infer that the regular attendance by Mrs Tracy at the trial was, not unreasonably, to support the second applicant, because the outcome of the trial was important to the second applicant. Further, the comment by Counsel for the applicants during the hearing that he would discuss the issue of an adjournment with "Mr and Mrs Tracy" in my view is not suggestive of meddling by Mrs Tracy in the applicants' case or an active part played by Mrs Tracy in the proceedings. Rather, as submitted by the applicants the comment merely recognised that Mrs Tracy would be present with the second applicant during the discussions, which was both unexceptional and understandable in the circumstances. Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).
Case: Neville v London Express Newspaper Ltd [1919] AC 368
Outcome: cited
and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.
Case: NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
Outcome: cited
note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204.
Case: Probiotec Ltd v The University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30
Outcome: cited
first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.
Case: Thistleton v Hendricks (1992) 32 Con LR 123
Outcome: cited
and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.
Case: UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204
Outcome: cited
note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204.
Case: Yates v Boland [2000] FCA 1895
Outcome: cited
cannot be correct that the circumstances described in Knight [1992] HCA 28 ; (1992) 174 CLR 178 constitute necessary pre-conditions to the exercise of the Court's discretion to award non-party costs pursuant to s 43 as submitted by the applicants. While obviously the comments of Mason CJ and Deane J would be an appropriate guide to the exercise of discretion in an appropriate case, they were clearly obiter (see observations of the Full Court in Yates v Boland [2000] FCA 1895). As the exercise of the discretion in s 43 is unfettered, other than the requirement that it be exercised judicially ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 at [192] ; Gore (2002) 119 FCR 429 at 447-448), it follows that the comments in Knight [1992] HCA 28 ; (1992) 174 CLR 178 could not prescribe prerequisites to the exercise of discretion to award costs against a non-party. Inevitably, as the Full Court pointed out in Gore (2002) 119 FCR 429 at 437: ...there is no reason to suppose that the remarks of the members of the High Court in Knight have closed the door to the categories of third parties who may be made liable for the costs of litigation nor that the circumstances that were identified by their Honours were exhaustive. ... and later ...the learned trial judge erred when he regarded the passage in Knight as laying down three principles, each of which must be present before a stranger to the litigation could be made liable for costs. (at 451)
Case: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Outcome: discussed
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). It therefore remains only to consider whether it would be "appropriate" to make the orders sought. The discretion conferred by s 87A is in substance the same as that which applies in the exercise of the Court's discretion under s 87 and must, of course, be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act (see Brown at [22]). The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may vary according to the particular circumstances of each case. Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).
Case: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 
Outcome: cited
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6] [9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court's power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement ( Brown at [23] in respect of s 87A and Hughes at [9] in respect of s 87).
Case: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208
Outcome: cited
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought ( James at [4]). That is not the case here. In the present case, the applicants, the State and the Martu People have had independent legal advice and although the Shire of Derby/West Kimberley has not been legally represented, the Shire Planner has requested that access rights for the Shire's employees and agents to the Determination Area be recognised, particularly as regards access to upgrade the roads and infrastructure of the Kurlku and Purlawarla communities. These rights have been specifically recognised as "other interests" in Schedule 4 to the Minute.
Case: Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717
Outcome: referred to
preference of settling matters as opposed to litigating them has been recognised as a desirable public objective by the High Court and this Court on numerous occasions and its is always heartening when native title claims are settled by agreement rather than through litigation. As the Chief Justice said in Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717 , at [8]: 'The courts have always encouraged parties to settle their claims amicably'. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595.
Case: Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109
Outcome: cited
Court's jurisdiction to hear and determine native title applications is specifically provided for by the Act in s 81. This jurisdiction expressly includes the power to make orders by consent pursuant to s 87A. These statutory provisions make it clear that the Court's jurisdiction is enlivened. It should, however, be noted that the agreement in this case relates to part of the land and waters the subject of the Ngurrara application. The making of a determination of native title in respect of part of an application is a matter that falls within both s 87(3) and s 87A of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [6] ). This approach has been taken in a number of cases in Western Australia under s 87 (Nangkiriny v State of Western Australia [2002] FCA 660 ; (2002) 117 FCR 6 ; Nangkiriny v Western Australia [2004] FCA 1156 ; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 ; Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365) and under alternatively s 87 and s 87A ( Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025). The State has taken an active and significant part in the negotiation of the consent determination. This was said by Emmett J to be an important factor: Munn at [29]. The State has had regard to the requirements of the Act and applied a rigorous and detailed assessment process. It has satisfied itself that the consent determination is justified in all the circumstance. There is no suggestion that the agreement was not freely made. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances. The continuous connection of the Ngurrara people with Determination Area A is acknowledged by all parties. There is also evidence to support that connection. The Ngurrara Native Title Claim WC96/32 Supplementary Consent Determination Report dated January 2006 by Daniel Aime Vachon (amended in October 2007) ("the Report") describes the enduring connection of the native title claimant group to their country within the claim area and, on the basis of the material contained in the Report, supports their claim to a native title right to possession, occupation, use and enjoyment of Determination Area A to the exclusion of all others.