mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: followed
The courts in quite some number of cases have indicated types or categories of case in which the award of costs on a basis other than party and party may appropriately be ordered: see e.g. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. However, they have emphasised that the categories are not closed and that, even though circumstances may exist which are capable of warranting a more generous costs order than on a party and party basis, this does not compel that such an order be made: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685 at 687-688. For present purposes it is unnecessary to consider the case law in any detail. I am content in this matter to adopt the observations of Gray J (with whom the other members of the court agreed) in Hamod v New South Wales (2002) 188 ALR 659 at [20]: "Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."
Case: Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Outcome: cited
As Bowen CJ said in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234, open justice is the underlying assumption of s 50. There is nothing to suggest that publication of my reasons, or even publication of the applicant's name, would frustrate the administration of justice or any other public interest. 172 Whilst publication may affect the applicant's reputation or cause her embarrassment or perhaps even damage, those factors are essentially of a private nature. Even if they bear on matters of public interest, they cannot tip the scales against the public interest in open justice. 173 I decline to make the order sought.
Case: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367
Outcome: cited
However, the following remarks of Menzies J in Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 382 show why s 39B(1A)(c) is not enlivened:- "A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law." 162 Here, the issue before Senior Member Kelly was whether the relevant government agencies had made adequate searches for the documents. The questions explored by the applicant with Ms Smith as to the circumstances in which their friendship ceased, the imputation of a disability, and contact with relatives, were irrelevant to that issue. 163 It was therefore not necessary for there to be a decision on those questions and no matter arose under the DSA or the other Federal statutes to which the applicant referred.
Case: Herald &amp; Weekly Times Limited v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435
Outcome: referred to
Senior Member Allen also referred to the judgment of Merkel J in Herald &amp; Weekly Times Limited v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 (" Herald &amp; Weekly Times") in which his Honour adopted the observations of Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 (" John Fairfax" ). There, the learned President, as he then was, pointed out at 142 that:- "A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed in the greater public interest in adhering to an open system of justice." 124 Senior Member Allen took into account the embarrassment and damage which may flow to the applicant from publication. This is evident from his quotes from Re Pochi , Herald &amp; Weekly Times and the remarks of Kirby P in John Fairfax .
Case: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
Outcome: referred to
Senior Member Allen also referred to the judgment of Merkel J in Herald &amp; Weekly Times Limited v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 (" Herald &amp; Weekly Times") in which his Honour adopted the observations of Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 (" John Fairfax" ). There, the learned President, as he then was, pointed out at 142 that:- "A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed in the greater public interest in adhering to an open system of justice." 124 Senior Member Allen took into account the embarrassment and damage which may flow to the applicant from publication. This is evident from his quotes from Re Pochi , Herald &amp; Weekly Times and the remarks of Kirby P in John Fairfax .
Case: Lawrance v Administrative Appeals Tribunal [2005] FCA 541
Outcome: cited
The second category arises out of the application heard by Senior Member Kelly on 1 November 2004. The applicant seeks an order prohibiting the learned member from making her decision and orders removing her from the conduct of the review. However, I refused to grant interlocutory relief which sought to prevent Senior Member Kelly from making her decision; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J; see [2005] FCA 541. The request for such orders in the present proceedings has thus been overtaken by the publication of Senior Member Kelly's decision on 24 May 2005. 167 Moreover, as Hely J observed in Lawrance v Administrative Appeals Tribunal [2005] FCA 541 at [39] there is an additional problem with the applicant's claim. A witness appearing before the AAT has the protection conferred by s 60(3) of the AAT Act . As his Honour said, the applicant's claim for an injunction would run counter to the immunity given by that section even if it were established that Ms Smith lied at the hearing before Senior Member Kelly. 168 In any event, Senior Member Kelly accepted the evidence of Ms Smith. That was a finding of fact made within jurisdiction. 169 The applicant asks me to make an order under s 50 of the Federal Court of Australia Act 1976 (Cth) that the Court suppress her name and refrain from publishing its decision in this matter.
Case: Lawrance v Administrative Appeals Tribunal [2005] FCA 1318
Outcome: referred to
Other requests for information in wide terms appear to have been made to the other relevant respondents; see Lawrance v Administrative Appeals Tribunal [2005] FCA 1318. 47 On 8 March 2004, CRS replied to the applicant's request. CRS said:- " - CRS Australia provides vocational rehabilitation, under the Disability Services Act (Cth) 1986. Vocational rehabilitation is a voluntary process and all CRS Australia vocational rehabilitation programs are provide (sic) in consultation with the client; - CRS Australia does not conduct surveillance, and does not endorse the collection of personal information without the individual's knowledge and consent; - Following searches of CRS Australia electronic records, using the details provided in your letter, I can confirm that CRS Australia has no record of you being a CRS Australia client, employee or contractor; - If you had been a CRS Australia client at anytime between 1986 and 2004; an electronic record of your involvement with CRS Australia would have been made; - CRS Australia does not hold personal or health information about individuals who are not CRS Australia clients, employees or contractors; - All correspondence about clients, including correspondence via e-mail and facsimile, is kept in hard copy on the client's CRS Australia file." 48 CRS concluded by saying that in accordance with s 24A of the FOI Act , CRS was unable to provide the information requested. CRS stated that all reasonable steps had been taken to find the documents and that none could be found or did not exist.
Case: Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79
Outcome: referred to
The second category arises out of the application heard by Senior Member Kelly on 1 November 2004. The applicant seeks an order prohibiting the learned member from making her decision and orders removing her from the conduct of the review. However, I refused to grant interlocutory relief which sought to prevent Senior Member Kelly from making her decision; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J; see [2005] FCA 541. The request for such orders in the present proceedings has thus been overtaken by the publication of Senior Member Kelly's decision on 24 May 2005.
Case: Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: referred to
However, on the material before me, there is nothing to make good the assertion that there was a denial of procedural fairness in the approach adopted by Senior Member Allen. No transcript of the hearing of the application was put before me, and there is nothing to suggest otherwise than that all of the applications for suppression orders were made on the same basis and on the same material. It would follow that the legal and factual issues were identical in each application under s 35(2). See NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] ; cf Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [121] [122].
Case: NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241
Outcome: cited
However, on the material before me, there is nothing to make good the assertion that there was a denial of procedural fairness in the approach adopted by Senior Member Allen. No transcript of the hearing of the application was put before me, and there is nothing to suggest otherwise than that all of the applications for suppression orders were made on the same basis and on the same material. It would follow that the legal and factual issues were identical in each application under s 35(2). See NAOA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] ; cf Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [121] [122].
Case: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Outcome: referred to
As to the principles to be applied, Senior Member Allen referred to the judgment of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 (" Re Pochi") at 272 273. His Honour said that an order excluding the public may be more justified than an order excluding a party but that strict criteria govern the making of such an order. There must appear to be a real possibility of injustice to, or a serious disadvantage upon, a party or a witness or it must clearly appear that publication of the proceeding would be contrary to the public interest. 124 Senior Member Allen took into account the embarrassment and damage which may flow to the applicant from publication. This is evident from his quotes from Re Pochi , Herald &amp; Weekly Times and the remarks of Kirby P in John Fairfax .
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
Her reasons include submissions that the respondents have behaved unreasonably, that her claim is made in public interest litigation and that the case involves her personal liberty; see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at [29] . 176 I reject the applicant's submissions. Nothing has been put to persuade me that costs ought not to follow the event. 177 I will order that the application be dismissed and that the applicant pay the costs of the fifth to ninth respondents; otherwise it seems appropriate that there be no order as to costs of the remaining respondents. I certify that the preceding one hundred and seventy seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 5 April 2006 Counsel for the Applicant: The Applicant appeared in person Solicitor for the 5 th to 9 th Respondents: Australian Government Solicitor Date of Hearing: 16 March 2006 Date of Judgment: 5 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/342.html
Case: Scott v Scott [1913] AC 417
Outcome: referred to
Senior Member Allen observed that the policy reasons for adhering to an open system of justice were stated by Lord Atkinson and Lord Shaw in Scott v Scott [1913] AC 417 at 463 and 484-485 respectively.
Case: Sweedman v Transport Accident Commission [2006] HCA 8
Outcome: referred to
Nothing that was said by the High Court in the recent decision on federal jurisdiction in Sweedman v Transport Accident Commission [2006] HCA 8 assists the applicant in the present case. There the Court was concerned with choice of law rules applicable in the County Court of Victoria in respect of a motor accident. The accident occurred in New South Wales between vehicles registered respectively in Victoria and New South Wales and driven respectively by Victorian and New South Wales resident drivers. 165 The majority Justices observed at [33] that the County Court was exercising federal jurisdiction and that federal law controlled and required under s 80 of the Judiciary Act the applicable law. No such questions arise in the present case. 166 Here, no debate as to whether there may be the excessive long-arm jurisdiction, which concerned Callinan J in dissent at [102], is triggered. This is a case in which no issue of federal jurisdiction is engaged by the complaints made against Ms Smith.
Case: Transport Workers Union of Australia v Lee (1998) 84 FCR 60
Outcome: cited
It is true that the applicant claims rights under Federal laws such as the DSA and that she claims breaches of rights or duties which owe their existence to Federal laws; see the discussion of the well established authorities in Transport Workers Union of Australia v Lee (1998) 84 FCR 60 at 65-67 (Black CJ, Ryan and Goldberg JJ).
Case: Vietnam Veterans' Affairs Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419
Outcome: referred to
Thus, although persons may be officers of the Commonwealth for some purposes, eg as employees of a government agency, that will be irrelevant where the impugned decision is that of the body corporate; see Vietnam Veterans' Affairs Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419 at 432 per Tamberlin J; see also Aronson at 31. 157 As Aronson states at 33, the main point of s 75(v) is to ensure judicial supervision of the execution of Commonwealth statutes and the exercise by the Commonwealth of common law and executive powers. 158 Nothing which Ms Smith is said to have done falls within this description. She was summonsed by the applicant to give evidence on an application to review the decision of CRS to refuse access to documents. What Ms Smith said in the witness box, or in her statement given to CRS in connection with the application, had no connection whatsoever with her duties or functions as an officer of the Commonwealth. No issue of want of power or want of jurisdiction was in any way involved in Ms Smith's actions.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Outcome: cited
The principles governing the grant of interlocutory relief are well established, and have recently been reaffirmed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 (' O'Neill ') at pars 19 and 65 and following. In O'Neill , the High Court affirmed the approach adopted by the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618. At par 19, Gleeson CJ and Crennan J said: '... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed ...' 34 The next major question is where the balance of convenience lies and whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy. It seems to me that my approach, in this case, should mirror that of the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited (1967 - 68) [1968] HCA 1 ; 118 CLR 618 at 625, where the Court said: 'The facts which appear to us to be decisive on this question may be stated quite briefly. In April 1967, after the plaintiff had been building up in Australia a substantial business in ampicillin over a period of several years, the defendant announced its intention of marketing hetacillin in Australia. The plaintiff on 10 May 1967 warned the defendant that if it began to do so proceedings for infringement of the patents would be taken. It was in the face of this warning that the defendant commenced the acts now complained of, and the action was thereafter instituted without delay. Any goodwill the defendant may since have built up for hetacillin would of course be destroyed or damaged by granting an injunction, but that was a risk the defendant took with its eyes open. If it be not restrained, it will presumably take advantage of the time before the hearing to subject the goodwill of the plaintiff's established trade in ampicillin to the prejudice of competition from a product which the defendant maintains has some points of superiority. In no meaningful sense could matters be said to be kept in status quo if in these circumstances the defendant were left free to pursue its course, merely keeping an account of the profits it makes.' That approach was recently reaffirmed by the High Court in O'Neill , to which I have earlier referred.
Case: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618
Outcome: cited
The principles governing the grant of interlocutory relief are well established, and have recently been reaffirmed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 (' O'Neill ') at pars 19 and 65 and following. In O'Neill , the High Court affirmed the approach adopted by the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618. At par 19, Gleeson CJ and Crennan J said: '... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed ...' 34 The next major question is where the balance of convenience lies and whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy. It seems to me that my approach, in this case, should mirror that of the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited (1967 - 68) [1968] HCA 1 ; 118 CLR 618 at 625, where the Court said: 'The facts which appear to us to be decisive on this question may be stated quite briefly. In April 1967, after the plaintiff had been building up in Australia a substantial business in ampicillin over a period of several years, the defendant announced its intention of marketing hetacillin in Australia. The plaintiff on 10 May 1967 warned the defendant that if it began to do so proceedings for infringement of the patents would be taken. It was in the face of this warning that the defendant commenced the acts now complained of, and the action was thereafter instituted without delay. Any goodwill the defendant may since have built up for hetacillin would of course be destroyed or damaged by granting an injunction, but that was a risk the defendant took with its eyes open. If it be not restrained, it will presumably take advantage of the time before the hearing to subject the goodwill of the plaintiff's established trade in ampicillin to the prejudice of competition from a product which the defendant maintains has some points of superiority. In no meaningful sense could matters be said to be kept in status quo if in these circumstances the defendant were left free to pursue its course, merely keeping an account of the profits it makes.' That approach was recently reaffirmed by the High Court in O'Neill , to which I have earlier referred.