mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, WAG 55 of 1988, 3 May 1991, unreported)
Outcome: referred to
Whilst the Court has power to make an order for costs on an indemnity basis, the question is whether the Court should so exercise its discretion in the particular case. A court may award indemnity costs in respect of misconduct which causes loss of time to the Court and to other parties: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, WAG 55 of 1988, 3 May 1991, unreported) referred to with approval in Colgate-Palmolive at 233; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] per Harper J. As Mason P, with whom Meagher and Clarke JJA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order. The procedural history provides sufficient evidence of unreasonable conduct on the part of Mr Armitage, through his legal representatives or personally, to continue to justify an indemnity costs order on Ms Wu's motion.
Case: Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Outcome: referred to
Whilst the Court has power to make an order for costs on an indemnity basis, the question is whether the Court should so exercise its discretion in the particular case. A court may award indemnity costs in respect of misconduct which causes loss of time to the Court and to other parties: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, WAG 55 of 1988, 3 May 1991, unreported) referred to with approval in Colgate-Palmolive at 233; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] per Harper J. As Mason P, with whom Meagher and Clarke JJA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order. The procedural history provides sufficient evidence of unreasonable conduct on the part of Mr Armitage, through his legal representatives or personally, to continue to justify an indemnity costs order on Ms Wu's motion.
Case: Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Outcome: referred to
Whilst the Court has power to make an order for costs on an indemnity basis, the question is whether the Court should so exercise its discretion in the particular case. A court may award indemnity costs in respect of misconduct which causes loss of time to the Court and to other parties: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, WAG 55 of 1988, 3 May 1991, unreported) referred to with approval in Colgate-Palmolive at 233; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] per Harper J. As Mason P, with whom Meagher and Clarke JJA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order. The procedural history provides sufficient evidence of unreasonable conduct on the part of Mr Armitage, through his legal representatives or personally, to continue to justify an indemnity costs order on Ms Wu's motion.
Case: Bhagat v Global Custodians Ltd [2002] FCA 223
Outcome: referred to
Mr Armitage is now an unrepresented litigant and has been so since Mr Liberoginnias ceased to represent him on 27 April 2005. Prior to that date, he had legal representation. Like many unrepresented litigants, he is impecunious. Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order: see Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ. Further, impecuniosity is generally not a sufficient reason to deprive a party otherwise entitled to a costs order of the benefit of such an order: compare Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 per Nicholson J.
Case: Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469
Outcome: referred to
Mr Armitage is now an unrepresented litigant and has been so since Mr Liberoginnias ceased to represent him on 27 April 2005. Prior to that date, he had legal representation. Like many unrepresented litigants, he is impecunious. Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order: see Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ. Further, impecuniosity is generally not a sufficient reason to deprive a party otherwise entitled to a costs order of the benefit of such an order: compare Selliah v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 469 per Nicholson J.
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639
Outcome: referred to
Order 62 rule 3(2) permits the Court to order that costs be paid forthwith notwithstanding that the proceeding has not concluded. Weinberg J reviewed the authorities in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , concluding at [38] that "[t]he discretion which is vested in the Court to order that a party's costs be taxed and paid forthwith should be exercised only where the interests of justice in the particular case require that there be a departure from the general practice". See also Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 per Branson J. In Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] , Sackville J said that that "[i]t appears to be broadly accepted that some reason must be shown to depart from what Lehane J in Vasyli described as the 'clear practice of the Court'". At [22] his Honour referred to the variety of circumstances that had thus far been regarded as justifying departure from the general rule.
Case: Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545
Outcome: referred to
Order 62 rule 3(2) permits the Court to order that costs be paid forthwith notwithstanding that the proceeding has not concluded. Weinberg J reviewed the authorities in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , concluding at [38] that "[t]he discretion which is vested in the Court to order that a party's costs be taxed and paid forthwith should be exercised only where the interests of justice in the particular case require that there be a departure from the general practice". See also Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 per Branson J. In Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] , Sackville J said that that "[i]t appears to be broadly accepted that some reason must be shown to depart from what Lehane J in Vasyli described as the 'clear practice of the Court'". At [22] his Honour referred to the variety of circumstances that had thus far been regarded as justifying departure from the general rule.
Case: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347
Outcome: referred to
Order 62 rule 3(2) permits the Court to order that costs be paid forthwith notwithstanding that the proceeding has not concluded. Weinberg J reviewed the authorities in McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , concluding at [38] that "[t]he discretion which is vested in the Court to order that a party's costs be taxed and paid forthwith should be exercised only where the interests of justice in the particular case require that there be a departure from the general practice". See also Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 per Branson J. In Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] , Sackville J said that that "[i]t appears to be broadly accepted that some reason must be shown to depart from what Lehane J in Vasyli described as the 'clear practice of the Court'". At [22] his Honour referred to the variety of circumstances that had thus far been regarded as justifying departure from the general rule.
Case: NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 
Outcome: referred to
extracting the text of s 424A(1) of the Act, Smith FM thereafter referred to NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 at [14] , where a Full Federal Court (Ryan, Finkelstein and Downes JJ) pointed out that the reference in s 424A to 'particulars of any information... does not require the provision of evidence' , and further that '[t] he test is whether an applicant is fairly informed of the information considered to be adverse' . Upon that basis, his Honour observed, ' [i] n some cases, the objects of the section might only be able to be met by the actual provision of a copy of the source documents for the Tribunal's information. For example, where the Tribunal proposes to draw information from the appearance of a document which can not adequately be described in particulars.' His Honour then went on to observe that the '... s 424A letter sufficiently identified particulars of the information gained from the Moscow Embassy, which was then used in its reasons...'. The ' gist ' of that information obtained by the Tribunal, as so described by his Honour, '... comprised details of a claimed employment, the fact that letters had been given to the Embassy in corroboration of that employment, and that Embassy staff "had confirmed with the rector of the institute the claimed employment and position" . His Honour concluded that the letter '... sufficiently identified the potential relevance of that information, being that it was inconsistent with the factual claims of the [appellant] to the Tribunal as to his employment in Armenia and that he was in hiding' , and that as further stated in that letter in conclusion, those 'inconsistencies have the potential to cast doubt on the credibility of your claims to have had problems with the Armenian authorities for political reasons' . His Honour therefore concluded that 'I am therefore not satisfied that the Tribunal was in breach of its obligations under s 424A ' .
Case: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 
Outcome: cited
FM then addressed what he described as '... the situation more broadly from the perspective of... procedural fairness, and assuming that these are capable of surviving notwithstanding the presence of s 422B of the [Migration] Act', and held that he was '... not persuaded that any failure of procedural fairness occurred in this case', or '[i] n particular... that there was any obligation on the Tribunal to provide copies of the source of its information in the absence of any request by or on behalf of the [appellant]'. His Honour observed further that '[w] ithin the [appellant's] submissions is a contention that the Tribunal was obliged to make further inquires as to the true position concerning the [appellant's] academic qualifications and his employment' , but pointed out that '... there is clear authority that no such duty lies upon the Tribunal' , referring thereby to a number of authorities, including the Federal Court decision of Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [15] (Whitlam, Tamberlin and Sackville JJ) and the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (per Gummow and Hayne JJ). His Honour further observed that the appellant's submissions 'pointed to various factual aspects of the [appellant's] claims, which the [appellant] argued revealed error in the Tribunal's doubting of his credibility' . However his Honour pointed out that '[s] everal of these facts do not appear, in fact, to have been presented to the Tribunal' , and in any event his Honour considered that the same did no more than 'argue the merits of the factual assessments made by the Tribunal' , and did not 'reveal that the Tribunal's reasoning was not open to it on the material before it' .
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
FM then addressed what he described as '... the situation more broadly from the perspective of... procedural fairness, and assuming that these are capable of surviving notwithstanding the presence of s 422B of the [Migration] Act', and held that he was '... not persuaded that any failure of procedural fairness occurred in this case', or '[i] n particular... that there was any obligation on the Tribunal to provide copies of the source of its information in the absence of any request by or on behalf of the [appellant]'. His Honour observed further that '[w] ithin the [appellant's] submissions is a contention that the Tribunal was obliged to make further inquires as to the true position concerning the [appellant's] academic qualifications and his employment' , but pointed out that '... there is clear authority that no such duty lies upon the Tribunal' , referring thereby to a number of authorities, including the Federal Court decision of Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [15] (Whitlam, Tamberlin and Sackville JJ) and the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (per Gummow and Hayne JJ). His Honour further observed that the appellant's submissions 'pointed to various factual aspects of the [appellant's] claims, which the [appellant] argued revealed error in the Tribunal's doubting of his credibility' . However his Honour pointed out that '[s] everal of these facts do not appear, in fact, to have been presented to the Tribunal' , and in any event his Honour considered that the same did no more than 'argue the merits of the factual assessments made by the Tribunal' , and did not 'reveal that the Tribunal's reasoning was not open to it on the material before it' .
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2004) 215 ALR 162
Outcome: referred to
should first be observed that the Tribunal, which was a respondent in the proceedings below, has not been named as a respondent in the notice of appeal. In the light of the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; 215 ALR 162 at [43] , [91], [153] and [180], the Tribunal should be joined as a second respondent to the current proceedings. In the context of the present appeal, the appellant sought to tender his affidavit evidence of 17 July 2006; prior thereto, the appellant had failed to file any written submissions. The Minister indicated that there was no objection to the Court receiving the affidavit as constituting the appellant's submissions, but observed that if it were to be treated as evidence, it 'would be objected to'. The Minister went on to observe that the affidavit contained material that was not before the Court below or the Tribunal. I have received the affidavit to the extent that it may serve as submissions for the appellant. The principal features of the affidavit are as follows (using where appropriate the text of the affidavit): (i) his confirmation that his application for an Australian visa asserted that he 'was the Head of the Biology Department at Vanevan University'; (ii) his claim that 'the 16 th International Congress of Eye Research's Conference Co-ordinator wrote to [him] at the University on 5 August 2004'; (iii) 'the head of the Vanevan Institute wrote a letter on [his] behalf to the Australian Embassy in Moscow dated 11 August 2004 saying that [he] had been head of the [biology] department since 2000'; and (iv) '... the presiding member had been obliged to duly inform [him] of the information considered to be adverse'; The appellant made the further submission that '... the Tribunal's s 424A letter did not properly identify particulars of the information obtained from Moscow Embassy (as well as from other sources)', and that '[g]iven [the] importance of the issue I am of the view that the Tribunal was obliged to provide me not only with particulars of the information gained from Moscow but with the copies of letters mentioned in paragraph 2 of the Affidavit', and to do so for three reasons, which he formulated as follows: (i) '... the Tribunal made its own research. At 154 (CB) it was confirmed that the University does exist in Armenia. However the address of the University is entirely different'; (ii) '[a]ccording to one of the letters the presiding member relied on, the Vanevan University is located at 51/25 Pushkin Street, Yerevan 375002 Armenia' (a letter of 5 August 2004, marked annexure A, was attached to his affidavit); (iii) '[a]ccording to information obtained by the Tribunal, the said University is located in a different town (even in a different region) at 26 Miasnikyan Street, Town of Martuni, Gehgardunik Region, Armenia' (reference was thereupon made to what appears at page 154 of the Court Book).
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: applied
appellant submitted that '[f]urthermore if to accept the Minister's suggestion that the Tribunal affirmed the delegate's decision because it was not satisfied that I had been a PPA member given my alleged lack of knowledge of PPA, or [because] it "was not satisfied by the copy of my membership card", or [because] the Tribunal "was troubled by the fact" that I did not tell about the documents submitted to the Embassy early in the hearing, then it must be accepted that the Tribunal was in breach of s 424A of the Migration Act [because] it did not give me the opportunity to comment on this information.' The contention such as it was, is misconceived and without juridical foundation. The Minister submitted that those contentions made by the appellant regarding page seventeen of the Tribunal's judgment constituted 'a new section 424A case which was not put to the Federal Magistrate', in that the appellant contended that that information was not the subject of the section 424A notice provided to the appellant. The Minister pointed out rightly that those matters referred to by the appellant were all evaluations of evidence, not information within the meaning of s 424A of the Act. Reference was made by the Minister in that regard to the dictum of Allsop J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [206] - [207] , where his Honour discussed what is encompassed by the statutory notion of information in the context of s 424A(1) of the Act. Allsop J observed as follows: 'Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word 'information': that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a) , (b) or (c).' In the light of the above authority, I am persuaded that Smith FM was correct to conclude in his decision below that the ' s 424A letter sufficiently identified particulars of the information gained from the Moscow Embassy, which was then used by the Tribunal in its reasons...'. The appellant concluded the case on appeal as follows: 'Moreover, even if to accept that in such circumstances the Tribunal was not in breach of s 424A of the Act, it is to be accepted that the Tribunal acted unfairly. And this unfairness is to be regarded as denial of procedural fairness and, itself the issue of apprehended bias.'
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: referred to
find no error in Smith FM's conclusion, outlined at [12] of my reasons, that the Tribunal afforded the appellant procedural fairness. However, it may be observed that because s 422B of the Act took effect in relation to the present proceedings, the natural justice hearing rule has no application beyond the textual requirements contained within that section of the Act. The Minister referred in that regard to the Full Court decision of SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 (Heerey, Conti and Jacobson JJ), ' in which the decision of the same Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 was applied to find that section 422B excluded the common law natural justice hearing rule' .
Case: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: referred to
find no error in Smith FM's conclusion, outlined at [12] of my reasons, that the Tribunal afforded the appellant procedural fairness. However, it may be observed that because s 422B of the Act took effect in relation to the present proceedings, the natural justice hearing rule has no application beyond the textual requirements contained within that section of the Act. The Minister referred in that regard to the Full Court decision of SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 (Heerey, Conti and Jacobson JJ), ' in which the decision of the same Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 was applied to find that section 422B excluded the common law natural justice hearing rule' .
Case: Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307
Outcome: considered
as Senior Counsel for the Minister submitted, the tort of intimidation also requires establishing an intention on the part of the alleged tortfeasor to cause economic harm: Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307 at 342. There was no evidence before me of such an intention by the Minister. Indeed the intention of the Minister is to the contrary. The costs of the application for interlocutory relief in both proceedings will be reserved for further consideration. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 6 August 2009 Counsel for the Applicant: J Beach QC, D Harding and F Forsyth Solicitor for the Applicant: Human Rights Law Resource Centre Ltd Counsel for the First and Second Respondents: S Lloyd S.C. and L Clegg Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third Respondent: S Brownhill Solicitor for the Third Respondent: Australian Government Solicitor Counsel for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents: P Gray S.C. Solicitor for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondent: Gilbert + Tobin Date of Hearing: 30 July, 4 August 2009 Date of Judgment: 6 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/844.html