mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502
Outcome: cited
The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).
Case: De Georgiou v Dunn (No 2) (2005) 65 NSWLR 285
Outcome: cited
The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).
Case: Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: cited
The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added)
Case: De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Outcome: cited
The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added) 22 Having regard to the passages to which I have referred from the decision of the Full Court in Levick and the subsequent cases, I do not consider that the generality of the approach enunciated in De Sousa has been relevantly limited. A costs order may be made under s 43 of the Federal Court Act or O 62 r 9 when the solicitor or counsel has so failed in the duty to give proper consideration to the legal and/or factual questions involved in the preparation and presentation of an application as to be seriously derelict in his or her duty to the client and/or to the Court. There is no relevant distinction here between the position of solicitor and barrister whether in a divided or a fused profession.
Case: White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169
Outcome: cited
The Federal Court has no 'inherent jurisdiction'. Its jurisdiction and its powers are statutory. It does however possess, as an incident of the statutory grant of judicial power, implied powers which are no less in relation to the jurisdiction vested in it than the so called 'inherent jurisdiction' of a court of unlimited or general jurisdiction Jackson v Sterling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 at 619 (Wilson and Dawson JJ), 623 (Deane J). It is not necessary to resort to any implied power in this case. The source of the Court's power to award costs against practitioners is to be found in s 43 and O 62 r 9. The latter rule authorises costs against practitioners as a specific application of the discretion to award costs conferred by the Act. The power is to be exercised with care and in clear cases only in which there has been conduct on the part of the solicitor which amounts to a serious dereliction of duty De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order. That criterion was described by Goldberg J in White Industries (Qld) Pty Ltd v Flower &amp; Hart (a firm) (1998) 156 ALR 169 at 236 as: '... some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.' (emphasis added) 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.
Case: Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582
Outcome: cited
In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J rejected an application for costs made by the Minister against the solicitor for the applicant. His Honour held that, simply by instituting or maintaining on instructions, proceedings with no real prospect of success a solicitor would not be exposed to an order for costs. He referred to Medcalf v Mardell at 143-144 (Lord Hobhouse) and the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24] (Davies JA). In the latter case Davies JA, with whom Williams JA and Philippides J agreed, said that: 'If the case is plainly unarguable it is improper to argue it.' Nevertheless Mansfield J found, in the concurring judgment of Williams JA, a qualification in his reference to what Lord Hobhouse said in Medcalf v Mardell (at 143-144) : 'So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.' 14 Mansfield J said that the proper focus was firstly upon whether the solicitor for the applicant was shown to have been 'seriously derelict in his duty by reason of the institution of the application'. The respondent Minister in Kumar accepted that the applicant had given the solicitor instructions to institute the application. There was no evidence about what information had been given to the solicitor for the applicant or what advice the solicitor gave the applicant. His Honour said (at [26]): 'By instituting the proceedings on instructions, but without fully investigating the claims to be made, the solicitor for the applicant is not necessarily shown to have committed a serious dereliction of duty.' 15 In Bagshaw v Scott [2005] FCA 104 , Bennett J agreed with the explanation of the authorities by Mansfield J in Kumar . Her Honour was not satisfied that the solicitor in Bagshaw had deliberately or consciously decided to commence proceedings without any recognition of the absence of a prospect of success. His conduct was not so unreasonable that it attracted an order that he pay costs personally. Her Honour set out a number of propositions emerging from the authorities. McColl JA undertook a similar exercise in Lemoto. It is not necessary to quote or analyse those lists here save to acknowledge them as convenient, albeit not entirely congruent, references to the law as stated in English and Australian cases.
Case: Tran v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2006] FCA 199
Outcome: cited
The power to award costs against a legal practitioner under O 62 r 9 was recently considered by Weinberg J in Tran v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2006] FCA 199. In that case his Honour delivered judgment refusing an application for an extension of time within which to appeal against a decision of a Federal Magistrate. The question with which his Honour dealt in his subsequent judgment in the matter was whether the applicant's solicitor should be ordered, under O 62 r 9(1)(c) of the Federal Court Rules , to repay to the applicant some portion of the costs that the applicant had been ordered to pay to the respondent.
Case: Carson v Legal Services Commission [2000] NSWCA 308
Outcome: cited
In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.
Case: Harley v McDonald [2002] NZLR 1
Outcome: cited
The Privy Council in Harley v McDonald [2002] NZLR 1, on appeal from the Court of Appeal of New Zealand, held that the High Court of New Zealand had power to make costs orders against barristers and solicitors. In that country, as in Western Australia, there is a fused profession in which persons are admitted to practice as both barristers and solicitors. All have the same rights of audience in the courts. Lord Hope, delivering the judgment of their Lordships, said (at 23): '... it is hard to find a sufficiently clear dividing line between the style of practice of barristers on the one hand and that of solicitors on the other to justify giving an immunity from costs orders to barristers which is not enjoyed by solicitors. Recognition that barristers are subject to the same jurisdiction in this respect as solicitors is not inconsistent with any statutory provision or any rule of practice. In both cases there is the same public interest that a serious dereliction of duty to the Court by one of its officers should be dealt with by the Court. Their Lordships agree with the Court of Appeal that it is desirable in the public interest that the High Court should have power in appropriate cases to award costs against a barrister personally.' The distinction between solicitor and barrister appears to have no relevance in terms of principle in the exercise of the Court's powers to award costs against practitioners personally under s 43 or under O 62 r 9. Their distinctive roles may give rise to different applications of the general principles informing the exercise of the Court's powers.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: applied
The matters a court must consider on an application for an interim injunction are well-known. They were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ and recently reiterated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] - [72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). In this case, I was not satisfied that the applicant had made out a prima facie case. The applicant's submissions were put in terms of there being two "serious questions to be tried" (see Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153). It is permissible to approach the issue as one of whether there is a serious question to be tried provided that whether a question to be tried is a 'serious' question is understood to depend upon the same considerations, explained in Beecham [1968] HCA 1 ; 118 CLR 618 , which go to the strength of the probability upon which the existence of a prima facie case turns: O'Neill [2006] HCA 46 ; 227 CLR 57 at [70] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]).
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: applied
The matters a court must consider on an application for an interim injunction are well-known. They were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ and recently reiterated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] - [72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). In this case, I was not satisfied that the applicant had made out a prima facie case. The applicant's submissions were put in terms of there being two "serious questions to be tried" (see Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153). It is permissible to approach the issue as one of whether there is a serious question to be tried provided that whether a question to be tried is a 'serious' question is understood to depend upon the same considerations, explained in Beecham [1968] HCA 1 ; 118 CLR 618 , which go to the strength of the probability upon which the existence of a prima facie case turns: O'Neill [2006] HCA 46 ; 227 CLR 57 at [70] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]).
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: referred to
The matters a court must consider on an application for an interim injunction are well-known. They were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ and recently reiterated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] - [72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). In this case, I was not satisfied that the applicant had made out a prima facie case. The applicant's submissions were put in terms of there being two "serious questions to be tried" (see Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153). It is permissible to approach the issue as one of whether there is a serious question to be tried provided that whether a question to be tried is a 'serious' question is understood to depend upon the same considerations, explained in Beecham [1968] HCA 1 ; 118 CLR 618 , which go to the strength of the probability upon which the existence of a prima facie case turns: O'Neill [2006] HCA 46 ; 227 CLR 57 at [70] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]).
Case: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1
Outcome: referred to
The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al-Kateb [2004] HCA 37 ; 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions.