mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 1078
Outcome: applied
In Hamersley Iron Pty Ltd v National Competition Council [1999] FCA 1078 , Kenny J considered the apportionment of costs and reduced the costs awarded to the successful applicant to reflect, amongst other things, costs associated with certain affidavit evidence ruled to be inadmissible. 44 Similarly, here, a reduction of costs awarded to NCC would be appropriate in view of my rejection of the economic test. This was an issue which could be treated as clearly distinct and severable, it being in effect a positive contention raised by the NCC in its points of defence and amended points of defence, which had little merit and did add to the costs of preparation of the parties for trial. Whilst I do not have sufficient material to assess such costs, I am satisfied they are not merely minimal. 45 Professor Rey (the economic expert called on behalf of the NCC) and the other economic experts before me agreed that the term "production process" had no technical or specialised meaning in economics. In these circumstances, it is difficult to see how the economic test could be relevant to the contention that Hamersley was wrongly decided or could provide an appropriate replacement test.
Case: Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Outcome: cited
This approach was essentially adopted by Hodgson CJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Hodgson CJ, 3 June 1998), where, after discussing the competing considerations of encouraging selectivity of issues and not penalising a party for supporting their case in every reasonable way, his Honour stated at 13: Apart from that consideration, in general terms I accept that if an issue is raised reasonably and is not disproportionate to the whole case, then normally the successful party should get his or her costs. However, particularly in relation to severable issues, the lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; and if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue. See also Razzi 30 FCR 64; and Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271-272 per Mahoney JA.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
The ordinary rule applies even though the losing party may have had good legal grounds for its stance and conducted itself reasonably and appropriately: see Ruddock 115 FCR at 235. In exercising its discretion, the court is looking at the matter primarily from the perspective of the successful litigant: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 542-3 per Mason CJ; 564 per McHugh J. 20 However, it is to be observed that ordinarily a discount is applied, or said to apply, because of the inappropriate or unreasonable conduct of the successful party: see Ruddock 115 FCR at 236-237 and Latoudis 170 CLR at 544 per Mason CJ; 565-566 per Toohey J.
Case: Milne v Attorney-General for the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460
Outcome: cited
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). As a general rule, the successful litigant in a proceeding is entitled to receive its costs ordinarily, costs follow the event. The power to order costs is discretionary, although it must be exercised judicially and not against the successful party except for some good reason connected with the case: Milne v Attorney-General for the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460 at 477; Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234; and Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ. It is well established that the discretion conferred on the Court is very wide, and enables the Court to respond to the wide variety of circumstances that may arise in relation to the making of costs orders.
Case: National Competition Council v Hamersley Iron Pty Ltd (1999) 167 ALR 109
Outcome: applied
The position of the NCC is slightly different. Subject to one matter, it seems to me that the NCC is entitled to its costs of the proceedings as a successful litigant. The NCC adopted an appropriate role in the proceedings consistent with its statutory responsibilities: see National Competition Council v Hamersley Iron Pty Ltd (1999) 167 ALR 109 at 114. The NCC did successfully contend that Hamersley was clearly wrong. 38 However, the court has a general discretion in relation to costs even where a statutory body is acting in a limited role before the court: see generally Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231 (S) at [18]. 39 In my view, there was a clear separate and distinct inquiry or issue upon which the NCC was unsuccessful, and which it sought positively to contend, namely the economic test.
Case: Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Hodgson CJ, 3 June 1998)
Outcome: discussed
This approach was essentially adopted by Hodgson CJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Hodgson CJ, 3 June 1998), where, after discussing the competing considerations of encouraging selectivity of issues and not penalising a party for supporting their case in every reasonable way, his Honour stated at 13: Apart from that consideration, in general terms I accept that if an issue is raised reasonably and is not disproportionate to the whole case, then normally the successful party should get his or her costs. However, particularly in relation to severable issues, the lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; and if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue. See also Razzi 30 FCR 64; and Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271-272 per Mahoney JA.
Case: Roberts v Rodier [2006] NSWSC 1084
Outcome: cited
I should interpolate that there may not need to be the ability to precisely identify separate costs in respect of particular issues. As Campbell J said in Roberts v Rodier [2006] NSWSC 1084 at [33] : ... I do not accept that the appropriate way of exercising the costs discretion is limited to the identification of separate costs of particular issues. It could sometimes be within the scope of a proper exercise of discretion, where the costs of certain evidence was relevant to issues on which a plaintiff succeeded and also to issues on which the plaintiff failed, to decide to allow the plaintiff a proportion only of those costs. 26 Whilst the cases referred to above throw light on the relevant principles to be applied in the exercise of the discretion, their application to the facts of a particular case is sometimes difficult when competing considerations apply. 27 As I understand the principles relevant to my task, they can be summarised as follows: 1. A successful litigant is ordinarily entitled to its costs even if the losing party had good legal grounds for its position and conducted itself in the litigation reasonably and appropriately; 2. The successful litigant will be so entitled to its costs unless some good reason connected to the case is shown to the contrary; 3. Without limiting the general discretion available, a good reason to the contrary may arise: 3.1 Where the conduct of the successful litigant in connection with the case was unreasonable or inappropriate; 3.2 Where no such unreasonable or inappropriate conduct of the successful litigant is found, but nevertheless there were clearly distinct and severable issues or inquiries that were lost by the successful litigant; 4. If the conduct of a successful litigant was inappropriate or unreasonable in connection with the case, the successful litigant will usually be denied all or part of its costs; 5. Where the court is considering the question of costs in respect of a lost distinct or severable issue or inquiry, which can clearly be treated as distinct and severable, then to determine whether the successful party will lose some or all of its costs, it will be necessary to consider and weigh up case management principles, the significance of the issue or inquiry in proportion to the proceeding as a whole, and whether the issue or inquiry had any relative strength or merit; 6. The court has the discretion to apportion costs even if it cannot identify separate costs in respect of distinct or severable issues or inquiries on which the successful litigant failed, but the matters on which the party failed must be at least capable of separation from the matters on which the litigant was successful.
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). As a general rule, the successful litigant in a proceeding is entitled to receive its costs ordinarily, costs follow the event. The power to order costs is discretionary, although it must be exercised judicially and not against the successful party except for some good reason connected with the case: Milne v Attorney-General for the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460 at 477; Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234; and Cretazzo v Lombardi (1975) 13 SASR 4 at 11 per Bray CJ. It is well established that the discretion conferred on the Court is very wide, and enables the Court to respond to the wide variety of circumstances that may arise in relation to the making of costs orders. 14 The ordinary rule applies even though the losing party may have had good legal grounds for its stance and conducted itself reasonably and appropriately: see Ruddock 115 FCR at 235. In exercising its discretion, the court is looking at the matter primarily from the perspective of the successful litigant: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 542-3 per Mason CJ; 564 per McHugh J. 20 However, it is to be observed that ordinarily a discount is applied, or said to apply, because of the inappropriate or unreasonable conduct of the successful party: see Ruddock 115 FCR at 236-237 and Latoudis 170 CLR at 544 per Mason CJ; 565-566 per Toohey J.
Case: Health &amp; Life Care Ltd v SA Asset Management Corp [1995] SASC 5514 ; (1995) 18 ACSR 153
Outcome: applied
In Health &amp; Life Care Ltd v SA Asset Management Corp [1995] SASC 5514 ; (1995) 18 ACSR 153 , the Full Court of the Supreme Court of South Australia dealt with the question of construction of reg 5.6.24 and the principles of election relating to the surrender of a security by a secured creditor. Doyle CJ (with whom Duggan and Nyland JJ agreed) said at 158 that: ...reg 5.6.24(3) refers to a creditor who has voted in respect of his or her whole debt or claim...When a vote is taken on the voices or by a show of hands each creditor who votes does so simply in the capacity of a creditor. The Chief Justice went on to say that in his opinion: ...it cannot be said that a creditor who votes on the voices (or by a show of hands) votes in respect of the value of the debt or claim. 20 It is plain on the evidence before me that this is what occurred in the present case. It follows from what Doyle CJ said that the provisions of reg 5.6.24(3) were not enlivened. This regulation contains a statement of one situation in which a secured creditor is deemed to have surrendered his or her security. However, as I have said, that provision is not enlivened in the present case and it is unnecessary to further consider this issue. 22 Doyle CJ in Health &amp; Life Care went on at 162 to explain the relationship between reg 5.6.24 and the provisions of s 554E of the Act. It is evident that even if the provisions of the regulations are not applicable, there may nonetheless amount to conduct on the part of a secured creditor which would constitute an election within the principles stated in Sargent v ASL .
Case: Re Douglas Homes Qld Pty Ltd (in liq) [1980] Qd R 528
Outcome: cited
Dutney JA went on to refer to two earlier decisions, one of which ( Re Douglas Homes Qld Pty Ltd (in liq) [1980] Qd R 528) dealt with the submission of a proof of debt. It was observed in Re Douglas Homes that the proof of debt was some evidence of an election to surrender but it is not by itself conclusive evidence.
Case: Surfers Paradise Investments Pty Limited (in liq) v Davoren Nominees Pty Limited (2004) 1 QR 567
Outcome: applied
Such a situation arose in a decision of the Queensland Court of Appeal in Surfers Paradise Investments Pty Limited (in liq) v Davoren Nominees Pty Limited (2004) 1 QR 567. In that case the respondent was a secured creditor who lodged a proof of debt for the full amount of the debt, disclosing a mortgage, but attributing no value to it. Subsequently the secured creditor received from the liquidator a dividend cheque which it banked and retained. The dividend was calculated on that basis of the full amount of the appellant's total indebtedness. The lead judgment was delivered by Dutney J, but there is also a useful statement of the applicable principles in the judgment of Williams JA. (Jerrard JA agreed with both Williams JA and Dutney J). 26 The effect of the reasoning in Surfers Paradise Investments seems to be that something more than the mere submission of the proof of debt is required to constitute an election in the sense referred to in Sargent v ASL . In Surfers Paradise Investments the Queensland Court of Appeal was of the view that there was an election because the receipt of the dividend cheque was unequivocal. At that point in time, as Dutney J observed at [37], the respondent was required to make a choice between accepting the cheque or returning it to the liquidator. The assertion of a right to retain the dividend evidenced by banking the cheque and retaining the proceeds was sufficient to constitute unequivocal conduct amounting to an election.
Case: Young v ACN 081 162 512 (formerly Dallen Design Pty Ltd) (2005) 218 ALR 449
Outcome: distinguished
I should add that the decision of Gzell J in Young v ACN 081 162 512 (formerly Dallen Design Pty Ltd) (2005) 218 ALR 449, which dealt with the question of inadvertence, does not arise in the present case. This is because the question of inadvertence would only need to be addressed if the creditor voted in respect of the whole debt or claim.
Case: Barry v Repatriation Commission (1993) 41 FCR 529
Outcome: cited
Fourth, it is important to note that the concept of "income" under the Act is not to be equated with "income" under income tax legislation: Haldane-Stevenson v Director-General of Social Services (1985) 9 FCR 73 per McGregor and Pincus JJ at 75 and Davies J at 80. It is an act which provides for income maintenance : Davies J in Haldane-Stevenson 9 FCR at 80; Morling, Hartigan and Lee JJ in Secretary, Department of Social Security v Garvey (1989) 22 FCR 132 at 136; cf comments of O'Loughlin J in Barry v Repatriation Commission (1993) 41 FCR 529 at 532. "Earned, derived or received"
Case: Director-General of Social Services v Hales (1983) 47 ALR 281
Outcome: cited
First, the Act is remedial legislation in that it gives benefits to persons and thereby remedies Parliament's perceptions of social injustice (Social Services Consolidation Bill (Cth), Second reading speech, 15 May 1947, Minister for Health and Social Services, the Hon Senator McKenna). Accordingly, it calls for no narrow or pedantic construction: Lockhart, Gummow and Einfeld JJ in Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244, Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 per Black CJ at 303 (for similar observations, I also note Director-General of Social Services v Hales (1983) 47 ALR 281 per Sheppard J at 321 and Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 at para 53).
Case: Ergon Energy Corporation Limited v The Commissioner of Taxation [2006] FCAFC 125
Outcome: cited
In my view questions 1, 5 and 6 as pleaded in the applicant's notice of appeal are not questions of law which can form the basis of an appeal from the AAT, and upon which the Court can rule. While construction of any legislation undoubtedly raises legal issues, advancing as propositions for the court "the proper construction and operation" of a either a section of an Act (question of law 1 in the notice of appeal) or a phrase (questions of law 5 and 6 in the notice of appeal) do not, without more, present questions which the Court can properly consider. This is not a case where a question of law has been inelegantly drafted but nonetheless is a question the purport of which is tolerably clear ( Ergon Energy Corporation Limited v The Commissioner of Taxation [2006] FCAFC 125 at [51] ) - questions 1, 5 and 6 simply do not raise questions . 17 However, questions 2, 3 and 4 do raise questions, which can be characterised as questions of law. Indeed, for reasons I outline later, in my view questions 3 and 4 can be considered together. 18 I propose to look at the relevant legislation, and then consider each of these questions in turn.
Case: Flannery v Secretary Department of Social Security (1987) 78 ALR 431
Outcome: cited
Second, although the definition of "income" in the Act is construed broadly, the phrase "own use and benefit" necessarily implies rights of ownership of the relevant income amounts by the person receiving them. The breadth of the definition is demonstrated, for example, by the fact that it is not necessary that the relevant person does not have legal capacity to deal with the income amounts for the income amounts to be for the person's "own use and benefit". Income is for the "own use and benefit" of the person once it becomes their property which they can dispose of at will: cf Flannery v Secretary Department of Social Security (1987) 78 ALR 431 at 436 and Latham CJ in Mutual Acceptance Co Ltd v Federal Commissioner of Taxation [1944] HCA 34 ; (1944) 69 CLR 389 at 398.
Case: Haldane-Stevenson v Director-General of Social Services (1985) 9 FCR 73
Outcome: applied
Fourth, it is important to note that the concept of "income" under the Act is not to be equated with "income" under income tax legislation: Haldane-Stevenson v Director-General of Social Services (1985) 9 FCR 73 per McGregor and Pincus JJ at 75 and Davies J at 80. It is an act which provides for income maintenance : Davies J in Haldane-Stevenson 9 FCR at 80; Morling, Hartigan and Lee JJ in Secretary, Department of Social Security v Garvey (1989) 22 FCR 132 at 136; cf comments of O'Loughlin J in Barry v Repatriation Commission (1993) 41 FCR 529 at 532. "Earned, derived or received"
Case: Inguanti v Secretary, Department of Social Security (1988) 80 ALR 307
Outcome: considered
In relation to the concept of income being "earned, derived or received", it is clear that: &#8226; the use of the verbs "earned", "derived" and "received" in juxtaposition in the definition of "income" in the Act suggests that each was intended to have a different meaning: Sheppard J in Inguanti v Secretary, Department of Social Security (1988) 80 ALR 307 at 311 &#8226; income cannot be "earned, derived or received" unless it is also realised: Read 167 CLR per Mason CJ, Deane and Gaudron JJ at 67 &#8226; income can be realised - and hence received - even if temporarily it is not accessible: Rose 21 FCR at 245 &#8226; income can be "derived" within the meaning of s 8(1) even if it is not at that time received ( Inguanti 80 ALR at 311) &#8226; "earned" relates to personal earnings and profits ( Inguanti 80 ALR at 310).
Case: Marsh v Secretary to the Department of Social Security (1986) 12 FCR 100
Outcome: distinguished
Similarly, the facts of the case before me may be contrasted with those in Marsh v Secretary to the Department of Social Security (1986) 12 FCR 100 where, in finding that a training allowance paid to a part-time trainee was "income" within the meaning of the Social Security Act 1947 (Cth), Burchett J said at 104: "The whole of it was paid, so far as appears, not on condition that he expended any part of it upon a purpose associated with his part-time training, but to assist in his support whilst he was undergoing that training. How he chose to organize his life and expenditure during the period of the part-time course was entirely a matter for him... One can readily imagine a case of an allowance entitlement to receive which was dependent upon its expenditure for specified purposes, unrelated to the ordinary incidents of life, so as to entail the conclusion that either the whole of it, or some proportion of it, could not fairly be regarded as a net receipt 'for his own use and benefit' , within the meaning which the Full Court in Haldane-Stevenson's case ascribed to the definition..." (emphasis added) 46 A strong analogy can be drawn between the case before me and the case hypothesised by Burchett J in Marsh 12 FCR 100 - namely circumstances where income received is subject to the requirement of expenditure for certain purposes. The facts before me however may be distinguished from those in Marsh 12 FCR 100 where the manner in which the relevant employee spent his training allowance was a matter of choice for him.
Case: Mutual Acceptance Co Ltd v Federal Commissioner of Taxation [1944] HCA 34 ; (1944) 69 CLR 389
Outcome: cited
Second, although the definition of "income" in the Act is construed broadly, the phrase "own use and benefit" necessarily implies rights of ownership of the relevant income amounts by the person receiving them. The breadth of the definition is demonstrated, for example, by the fact that it is not necessary that the relevant person does not have legal capacity to deal with the income amounts for the income amounts to be for the person's "own use and benefit". Income is for the "own use and benefit" of the person once it becomes their property which they can dispose of at will: cf Flannery v Secretary Department of Social Security (1987) 78 ALR 431 at 436 and Latham CJ in Mutual Acceptance Co Ltd v Federal Commissioner of Taxation [1944] HCA 34 ; (1944) 69 CLR 389 at 398.
Case: Nelson v Secretary, Department of Social Security (Bowen CJ, Toohey and French JJ, 10 December 1986)
Outcome: cited
Interestingly, the meaning of the phrase "own use or benefit" in s 8(1) of the Act has not previously been the subject of judicial decision in this Court, although it has been raised in argument in a number of cases without the need for the Court to make a decision (for example, in Secretary Department of Social Security v Davies [1997] 1024 FCA; Nelson v Secretary, Department of Social Security (Bowen CJ, Toohey and French JJ, 10 December 1986)).