mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: referred to
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: referred to
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.
Case: Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: referred to
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Re Elgindata Ltd (No 2) [1993] All ER 232
Outcome: referred to
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699
Outcome: cited
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Outcome: cited
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81
Outcome: cited
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748
Outcome: cited
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: referred to
In Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156-157, Cooper and Merkel JJ said that: (a) the court ought not to depart from the usual party and party basis for costs unless this was warranted by the circumstances of the case; and (b) these circumstances arise "as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course".
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
As the first respondent noted, costs may also be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The rejection of a Calderbank offer does not of itself warrant an order of indemnity costs, even if the offeree fails to secure a more favourable outcome in the proceedings. In order for there to be an indemnity costs order, the respondents must show that the applicants' rejection of their offer was so unreasonable as to justify indemnity costs: see, e.g., Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. In this case, the applicants acted unreasonably in seeking to resile from the position that they had adopted in communications with the respondents prior to and at the first hearing. In my view, the rejection of the Calderbank offer was unreasonable in all the circumstances because, as at 28 June 2005 (after the directions hearing of 8 June 2005), the applicants should have appreciated that they would not be able to quantify the Commonwealth's loss unless granted leave to reopen their case, and that there were serious doubts that such leave would be forthcoming. This alternative basis would also support an award of indemnity costs in the first respondent's favour in respect of the period after 28 June 2005.
Case: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281
Outcome: referred to
As the first respondent noted, costs may also be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The rejection of a Calderbank offer does not of itself warrant an order of indemnity costs, even if the offeree fails to secure a more favourable outcome in the proceedings. In order for there to be an indemnity costs order, the respondents must show that the applicants' rejection of their offer was so unreasonable as to justify indemnity costs: see, e.g., Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. In this case, the applicants acted unreasonably in seeking to resile from the position that they had adopted in communications with the respondents prior to and at the first hearing. In my view, the rejection of the Calderbank offer was unreasonable in all the circumstances because, as at 28 June 2005 (after the directions hearing of 8 June 2005), the applicants should have appreciated that they would not be able to quantify the Commonwealth's loss unless granted leave to reopen their case, and that there were serious doubts that such leave would be forthcoming. This alternative basis would also support an award of indemnity costs in the first respondent's favour in respect of the period after 28 June 2005.
Case: SZBDF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302
Outcome: applied
The Federal Magistrate considered the ambit of s 422B of the Migration Act 1958 (Cth) ("the Act ") and found, in the light of authority, that she was bound to follow the decision of the Federal Court in SZBDF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302, where Branson J considered the possible operation of principles of procedural fairness beyond the scope of the obligations imposed by s 424A of the Act and concluded there was no scope for any wider obligation to provide particulars of information in relation to the Tribunal's review process. Barnes FM found that the appellant's grounds of complaint in relation to the breach of common law rules of procedural fairness could not succeed since the effect of s 422B was that there was no obligation on the part of the Tribunal to put its concerns about the document to the appellant for explanation. 21 The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act , SZBDF , and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO . I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B.
Case: SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514
Outcome: applied
The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act , SZBDF , and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO . I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992
Outcome: referred to
The appellant asserted that the Tribunal fell into error by according no weight to the Dum Dum Trinamool Yuba Congress letter without any investigation on its part; however although the Tribunal has of course investigative powers under s 424 of the Act , it is not a condition to the exercise of its statutory power that it does so, and in that regard I was referred by the Minister to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992 at [43] (per Gummow and Hayne JJ). 24 The appellant's next contention was that the following findings were not open on the evidence before the Tribunal: (a) the Tribunal's adverse finding on credibility and the rejection of all of the appellant's claims; and (b) its further finding that the successful campaigns for election candidates did not make him a target for CPIM supporters.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: referred to
In relation to the first matter above, the Tribunal did not make any adverse credibility finding or reject each of the appellant's claims; the Tribunal gave the appellant the benefit of the doubt on a number of matters. Nonetheless, assessments as to credibility are matters essentially for the Tribunal to undertake. In support of that proposition, the Minister referred the Court to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407. 26 In relation to the second matter above, the Tribunal based its conclusion on the evidence that the appellant gave and in the course of which he described the activities he undertook under the instructions received from others. I find that the Tribunal's finding that the appellant's ' activities demonstrate that he would not be perceived by his adversaries as having political influence or profile ' was open on the evidence. 27 Contrary to the assertion advanced by the appellant in ground 9 of the notice of appeal, the Tribunal did not find that the appellant could evade harm by not being politically active. Rather, as already outlined, the Tribunal found that he had not previously been subjected to persecution and did not have a profile likely to attract persecution in the future. Moreover the Tribunal established that the violence from the CPIM was sporadic, not state sponsored, and further that there was in place effective state protection.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83
Outcome: applied
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 , I accepted the following submission, which was made on behalf of the applicant in that case, as accurately setting out the principles relevant to the question of penalty for contempt: '1.5 In deciding the appropriate penalty, a court should consider the following factors: (1) contemnor's personal circumstances; (2) nature and circumstances of the contempt: R v West Australian Newspapers Ltd; Ex Parte DPP (WA) (1996) 16 WAR 518; (3) effect of the contempt on the administration of justice: Durack v Gallagher (1982) 44 ALR 272 at 286-7; (4) contemnor's culpability: Durack v Gallagher (1982) 44 ALR 272 at 286-7; (5) need to deter the contemnor and others from repeating contempt: DPP v John Fairfax &amp; Sons Ltd (1987) 8 NSWLR 732, Kirby P at 741; and (6) absence or presence of a prior conviction for contempt: Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410. However, other criminal history is irrelevant: R v Giscombe (1984) 79 Cr App R 79 at 84. 1.6 In deciding the amount of any fine the Court should take into account the contemnor's financial means: Smith v R (1991) 25 NSWLR 1. The court may also suspend the fine on terms. Contrition and apology 1.7 Genuine contrition and a full and ample apology may also reduce the penalty: R v Gray [1900] 2 QB 36 at 41-2; Superstar Australia Pty Ltd v Coonan &amp; Denlay Pty Ltd (No 2) (1982) 65 FLR 432 at 436. Imprisonment 1.8 It is widely accepted that the court should only impose a term of imprisonment in the most serious criminal contempt cases: Keeley v Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238. 1.9 In Deputy Commissioner of Taxation v Hickey [1999] FCA 259 , Carr J held that imprisonment is a "last resort": see also R v Vasin (1985) 39 SASR 45; James (1985) 14 A Crim R 364; Skipper (1992) 64 A Crim R 260.'
Case: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 629
Outcome: cited
As with any deliberate defiance of the Court's orders, Siminton's disposal contempts have a severe and deleterious effect on the administration of justice. I observed in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 629 at [79] that the rule of law in a democratic society does not permit any member of the society to pick and choose the laws or court orders that are to be observed and those that are not. I added: 'Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes ( Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31 ; (1998) 153 ALR 641 at [1] per Hayne J), it also requires that parties comply with the orders made by the courts in determining those disputes.'