mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: applied
Principles which courts typically take into account in determining such applications were outlined by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 as follows: 1. That such applications should be brought promptly. 2. That regard is to be had to the strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim. 4. Whether the respondent's application for security is oppressive. 5. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security. 6. Whether persons standing behind the company have offered any personal undertaking to be liable for the costs. 7. Is the party against whom security is sought in substance a plaintiff.
Case: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93
Outcome: cited
In any event, in relation to this Deed of Guarantee, I am further disinclined to exercise my discretion in favour of the applicant where this Court has previously indicated that a personal guarantee given in satisfaction for security for costs is acceptable in only exceptional circumstances: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 , cf Jianshe Southern Pty Ltd v Get Motor Cycles Pty Ltd (formerly Turnbull Cooktown Pty Ltd) (No 3) [2007] FCA 1078 at [30] - [31] . The applicant has demonstrated no circumstances in this case justifying the acceptance of a personal guarantee as distinct from a cash payment or a bank guarantee. Additional points
Case: Walker v Wimborne [1976] HCA 7 ; (1976) 137 CLR 1
Outcome: cited
However in my view, even assuming that the document is a guarantee as a matter of law, in the absence of supporting evidence or authority I am not prepared to accept that cl 12.1(d) empowers the applicant to either assume an obligation or give a guarantee binding the assets of the Success Development &amp; Property Group Unit Trust of a substantial sum as security for the costs of the applicant in its capacity as trustee for another Unit Trust in litigation in which, prima facie , the beneficiaries of the Success Development &amp; Property Group Unit Trust have no interest. Irrespective of any commonality of trusteeship, I am not persuaded that the broad terms of the power vested in the applicant by cl 12.1(d) permit the applicant to act in potential disregard of the interests of the beneficiaries of the Success Development &amp; Property Group Unit Trust (cf, by analogy, Walker v Wimborne [1976] HCA 7 ; (1976) 137 CLR 1). Indeed although the proposed Deed of Guarantee, annexed to the affidavit of Mr MacKinlay, contains a statement that the applicant is "entitled to be indemnified out of the trust property of the SDPG Unit Trust for any liability which (sic) incurs (sic) behalf of the trust", it contains no reference to the applicant being entitled on behalf of the Success Development &amp; Property Group Unit Trust to enter this transaction, and be indemnified out of that property for liabilities arising out of this transaction.
Case: Westpac Banking Corporation v Garrett [2004] SASC 265
Outcome: cited
If the respondents sought to enforce payment of security for costs against the applicant, the respondents would have a claim against the applicant, which presumably would then claim a right of indemnity out of the trust assets of the Success Development &amp; Property Group Unit Trust. This assumes, of course, that the applicant's liability was properly incurred in the affairs of the trust (cf comments of McPherson J in General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388 at 390, followed by White J in Westpac Banking Corporation v Garrett [2004] SASC 265 at [27] ). As I have already discussed, it is uncertain in this case whether the liability of the applicant would be properly incurred on behalf of the Success Development &amp; Property Group Unit Trust, such as to entitle the applicant to a right of indemnity.
Case: Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (NSW) [1989] FCA 125 ; (1989) 20 FCR 576
Outcome: considered
No claim for privilege was made in respect to those documents which merely recorded (for example) the fact of payments by the Fifth Respondent or documents which simply recorded trust account records of payments of legal fees by the Fifth Respondent or cost agreements. Such a concession was rightly made both by Counsel for the First, Second and Fourth Respondents and by Senior Counsel for the Fifth Respondent. See: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 67 8 per Tamberlin J; Cook v Pasminco Ltd (No 2) [2000] FCA 1819 at [45] [48], [2000] FCA 1819 ; 107 FCR 44 at 52 3 per Lindgren J; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (NSW) [1989] FCA 125 ; (1989) 20 FCR 576 at 583 4 per Bowen CJ and Fisher J.
Case: Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952
Outcome: considered
Even though declaratory and injunctive relief has been granted already, it is not considered that an order would have been made that such costs as are to be paid should be paid forthwith. The conduct of the litigation to date has certainly not been characterised by any degree of expedition; but the hearing of the balance of the proceeding and the resolution of all outstanding issues, it is anticipated, can be accommodated at a comparatively early date: cf Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; Smart Co Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [43] per Lander J. In such circumstances it is not considered that there should be a departure from the general principle that costs should be payable when the rights of the parties -- including any liability in damages -- are finally determined.
Case: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 , 107 FCR 44
Outcome: considered
No claim for privilege was made in respect to those documents which merely recorded (for example) the fact of payments by the Fifth Respondent or documents which simply recorded trust account records of payments of legal fees by the Fifth Respondent or cost agreements. Such a concession was rightly made both by Counsel for the First, Second and Fourth Respondents and by Senior Counsel for the Fifth Respondent. See: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 67 8 per Tamberlin J; Cook v Pasminco Ltd (No 2) [2000] FCA 1819 at [45] [48], [2000] FCA 1819 ; 107 FCR 44 at 52 3 per Lindgren J; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (NSW) [1989] FCA 125 ; (1989) 20 FCR 576 at 583 4 per Bowen CJ and Fisher J.
Case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Outcome: considered
A like comment may be made in respect to paragraphs [2], [3] and [4] of the Subpoena directed to Simpsons Solicitors. Paragraph [3] of that Subpoena employs the language of documents " that refer or relate to " a particular document -- as does paragraph [8] of the Subpoena to Jordan Djundja Lawyers. Again, properly construed, it is not considered that those paragraphs are oppressive. The use of the phrase " relating to " in a subpoena does not necessarily mean that the subpoena has been drafted too widely or is otherwise oppressive: cf Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 at 192 per Smithers J. Paragraph [3] of the Simpsons Solicitors Subpoena , when read in its entirety, is confined to the circumstances in which the Affidavit of Mr Kiriakidis of 22 April 2008 was sworn. The confined nature of the documents required to be produced in answer to paragraph [3] is not rendered oppressive by reason simply of the use of phrases such as " relating to " or " without limitation ". The use of those phrases is in a context where the person upon whom the Subpoena has been served is not required to form a view as to whether other documents " relate to " a particular subject-matter (cf Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 per Jordan CJ); the task is confined to locating those documents " relating to " a particular document. In Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929 Waddell J relevantly observed: Use of expressions such as "relating to" need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all "invoices" relating to sales of a particular item to the defendant on a particular day. The use of the word "invoices" would restrict the potential width of the expression "relating to". Similarly, in American Express Warehousing Ltd v Doe [1967] 1 Lloyd's Rep 222, the Court of Appeal held that a requirement to produce the "contract slips" and "quote slips" relating to each of a number of insurances was not objectionable. A much more complicated set of circumstances in which use of the expression "related to" was held not to be objectionable appears in the decision of the Federal Court of Australia in Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; 18 ALR 555. ...
Case: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58
Outcome: considered
No claim for privilege was made in respect to those documents which merely recorded (for example) the fact of payments by the Fifth Respondent or documents which simply recorded trust account records of payments of legal fees by the Fifth Respondent or cost agreements. Such a concession was rightly made both by Counsel for the First, Second and Fourth Respondents and by Senior Counsel for the Fifth Respondent. See: Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 67 8 per Tamberlin J; Cook v Pasminco Ltd (No 2) [2000] FCA 1819 at [45] [48], [2000] FCA 1819 ; 107 FCR 44 at 52 3 per Lindgren J; Allen Allen &amp; Hemsley v Deputy Commissioner of Taxation (NSW) [1989] FCA 125 ; (1989) 20 FCR 576 at 583 4 per Bowen CJ and Fisher J.
Case: Lucas Industries Ltd v Hewitt (1978) 45 FLR 174
Outcome: considered
A like comment may be made in respect to paragraphs [2], [3] and [4] of the Subpoena directed to Simpsons Solicitors. Paragraph [3] of that Subpoena employs the language of documents " that refer or relate to " a particular document -- as does paragraph [8] of the Subpoena to Jordan Djundja Lawyers. Again, properly construed, it is not considered that those paragraphs are oppressive. The use of the phrase " relating to " in a subpoena does not necessarily mean that the subpoena has been drafted too widely or is otherwise oppressive: cf Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 at 192 per Smithers J. Paragraph [3] of the Simpsons Solicitors Subpoena , when read in its entirety, is confined to the circumstances in which the Affidavit of Mr Kiriakidis of 22 April 2008 was sworn. The confined nature of the documents required to be produced in answer to paragraph [3] is not rendered oppressive by reason simply of the use of phrases such as " relating to " or " without limitation ". The use of those phrases is in a context where the person upon whom the Subpoena has been served is not required to form a view as to whether other documents " relate to " a particular subject-matter (cf Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 per Jordan CJ); the task is confined to locating those documents " relating to " a particular document. In Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929 Waddell J relevantly observed: Use of expressions such as "relating to" need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all "invoices" relating to sales of a particular item to the defendant on a particular day. The use of the word "invoices" would restrict the potential width of the expression "relating to". Similarly, in American Express Warehousing Ltd v Doe [1967] 1 Lloyd's Rep 222, the Court of Appeal held that a requirement to produce the "contract slips" and "quote slips" relating to each of a number of insurances was not objectionable. A much more complicated set of circumstances in which use of the expression "related to" was held not to be objectionable appears in the decision of the Federal Court of Australia in Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; 18 ALR 555. ...
Case: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: cited
Notwithstanding the circumstances in which the orders were made, on 14 July 2008 the unusual course of permitting cross-examination was again raised with Counsel for the Applicants and, more relevantly, Counsel for Mr Kiriakidis. Reference was made to the observations of Menzies J in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Counsel for Mr Kiriakidis requested, and was granted, a short adjournment to obtain further instructions in light of reference being made to the unusual course being pursued. The cross-examination thereafter continued without any submissions being advanced on his behalf. As events unfolded, it was probably the only effective means whereby the Applicants could have exposed what they believed were inadequacies in the existing discovery as provided particularly by the Fourth Respondent. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided. 51 At least two observations need to be made. 52 First, some evidence given during cross-examination was that documents had been destroyed. As explained by Mr Kiriakidis, the destruction of documents occurred by reason of either: &#8226; such records as had been kept by Mr Kiriakidis being stored in boxes in a room behind a caf&eacute; where he was then residing, and being thrown out when he was in Greece for a period of six months from July 2006 to January 2007. The owner of the premises was said to have thrown out the boxes when Mr Kiriakidis did not return after what was expected to be only a three month visit; and &#8226; such other records as may have been maintained being routinely destroyed by employees, upon instructions, at the conclusion of every two week period. Mr Kiriakidis explained his concern as to whether or not the business was illegal and that he did not want records being maintained in such circumstances. Whether or not there was a basis for those concerns was not an issue pursued by Counsel for the Fourth Respondent during his cross-examination. It is a matter, however, which it is expected will emerge as an issue to be resolved at the final hearing.
Case: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174
Outcome: followed
A fourth matter was sought to be raised by way of a Notice of Motion filed by the Fifth Respondent on 31 July 2008 seeking to set aside part of a Notice to Produce served by the Applicants upon the Fifth Respondent. Documents pursuant to that Notice to Produce were produced on 24 July 2008. When such documents as were produced were made available, neither the Court nor the Applicants were told that there were additional documents which, it was later said, also fell within the terms of one of the Subpoenas presently sought to be set aside by the Fifth Respondent and that those documents were being withheld. A notice to produce has the same coercive effect as a subpoena: Federal Court Rules , O 33 r 12; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [4] per Sackville J. The procedure to be followed when there is a " call " upon a notice to produce has been long-settled: Glass H (ed), Seminars on Evidence (1969) at 12 18. If documents which fall within a notice are not produced, it is incumbent upon those who have been served with such a notice to unequivocally identify those documents and the reason for their non-production. 3 All other outstanding Motions in the proceeding are to be heard on 11 August 2008. The First Respondent's Notice of Motion filed 31 July 2008 can also be heard on that date. The intent in resolving all outstanding interlocutory matters as quickly as possible is self-evidently to facilitate a final hearing at the earliest possible date. This proceeding has already taken far longer to resolve than is desirable -- or necessary, given the issues in dispute. It is hoped that on 11 August 2008 dates for the final hearing can be fixed for later this year. 4 The relevant orders as to costs against the First, Second and Fourth Respondents as made on 2 April 2008 were as follows: 12. The First, Second and Fourth Respondents are to file and serve any Affidavit and submissions as to why an order for the payment of the Applicants' costs to date on an indemnity basis payable forthwith should not be made for any particular period from the commencement of this proceeding to date, by 5:00pm on 8 April 2008. 13. If the First, Second and Fourth Respondents do not file and serve an Affidavit and submissions in accordance with Order 12, the First, Second and Fourth Respondents are to pay the Applicants' costs to date on an indemnity basis with such payment to be made forthwith.
Case: Smart Co Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008
Outcome: considered
Even though declaratory and injunctive relief has been granted already, it is not considered that an order would have been made that such costs as are to be paid should be paid forthwith. The conduct of the litigation to date has certainly not been characterised by any degree of expedition; but the hearing of the balance of the proceeding and the resolution of all outstanding issues, it is anticipated, can be accommodated at a comparatively early date: cf Australian Securities and Investments Commission v Mining Projects Group Ltd (No 3) [2008] FCA 952 at [24] per Gordon J; Smart Co Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [43] per Lander J. In such circumstances it is not considered that there should be a departure from the general principle that costs should be payable when the rights of the parties -- including any liability in damages -- are finally determined.
Case: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530
Outcome: followed
The discretion in respect to costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) unquestionably extends to a power to order that costs be paid on an indemnity basis. In Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 , Lindgren J helpfully summarised the approach to be adopted in ordering indemnity costs as follows: [4] The question of the circumstances in which costs should be awarded on an indemnity basis has been discussed in many cases, recently in this Court by me in NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 and by Katz J in Waverley Council v Refkin Pty Ltd [2001] FCA 1469. I will not refer to the various judicial formulations to date of the grounds on which it is proper to award costs on an indemnity basis. It suffices that I acknowledge that the circumstances must be "special", must take the case out of the "ordinary" category of case, and must involve behaviour associated with the conduct of the proceeding by the person sought to be made liable which is so unreasonable as to make it unjust that the other party should be limited in its recovery to party and party costs. 11 Notwithstanding the manner in which the proceeding has been conducted to date, the four factors relied upon by the First, Second and Fourth Respondents to oppose an order for costs on an indemnity basis are: (a) the fact that those Respondents have made " significant admissions ", being admissions in respect to matters previously denied in their Defence but later admitted " consequent on service of evidence by the Applicants "; (b) the conduct of those Respondents in respect to discovery, including the fact that their very consent to the order for cross-examination of the Fourth Respondent is a tacit acknowledgment on their part that the deficiencies therein are sufficient to justify the unusual exercise of the Court's power to permit cross-examination on Affidavits filed in respect to discovery; (c) a contention that such delay as has occurred is " not all ... attributable to the Respondents "; and (d) a contention that a number of the Affidavits as filed by the Applicants " go predominately [sic] to the assessment of damages " and therefore would have been filed in any event. 12 A review of the materials as filed discloses that the First, Second and Fourth Respondents initially put in issue all aspects of the Applicants' case. They thus disputed (for example) whether the films in issue were " cinematograph film [s]" and the subsistence of copyright in those films and ownership of copyright. These matters were the subject of some admissions on 7 August 2007, but it was only on 2 April 2008 that orders for declaratory and injunctive relief were made by consent.
Case: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Outcome: followed
A like comment may be made in respect to paragraphs [2], [3] and [4] of the Subpoena directed to Simpsons Solicitors. Paragraph [3] of that Subpoena employs the language of documents " that refer or relate to " a particular document -- as does paragraph [8] of the Subpoena to Jordan Djundja Lawyers. Again, properly construed, it is not considered that those paragraphs are oppressive. The use of the phrase " relating to " in a subpoena does not necessarily mean that the subpoena has been drafted too widely or is otherwise oppressive: cf Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 at 192 per Smithers J. Paragraph [3] of the Simpsons Solicitors Subpoena , when read in its entirety, is confined to the circumstances in which the Affidavit of Mr Kiriakidis of 22 April 2008 was sworn. The confined nature of the documents required to be produced in answer to paragraph [3] is not rendered oppressive by reason simply of the use of phrases such as " relating to " or " without limitation ". The use of those phrases is in a context where the person upon whom the Subpoena has been served is not required to form a view as to whether other documents " relate to " a particular subject-matter (cf Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 per Jordan CJ); the task is confined to locating those documents " relating to " a particular document. In Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929 Waddell J relevantly observed: Use of expressions such as "relating to" need not result in there being any oppression or abuse of process. It all depends on the context in which the expression is used. For instance, it could hardly be said to be objectionable to require a person to produce all "invoices" relating to sales of a particular item to the defendant on a particular day. The use of the word "invoices" would restrict the potential width of the expression "relating to". Similarly, in American Express Warehousing Ltd v Doe [1967] 1 Lloyd's Rep 222, the Court of Appeal held that a requirement to produce the "contract slips" and "quote slips" relating to each of a number of insurances was not objectionable. A much more complicated set of circumstances in which use of the expression "related to" was held not to be objectionable appears in the decision of the Federal Court of Australia in Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; 18 ALR 555. ...