mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mason v New South Wale s [1959] HCA 5 ; (1959) 102 CLR 108
Outcome: discussed
The second case the applicant relies upon in relation to compulsion is McKay v National Australia Bank Ltd [1998] 4 VR 677. The appellant in that case claimed he had made an "involuntary payment ... under unlawful compulsion within the principles enunciated in Mason v New South Wales ". Mason v New South Wales [1959] HCA 5 ; (1959) 102 CLR 108 is a case involving a claim for money had and received on the basis of compulsion.
Case: McCormick v Riverwood International (Australia) Pty Ltd [2000] FCA 32
Outcome: referred to
In relation to the appropriate interest rate to be applied, the applicant submits that the penalty interest rate, as specified in Penalty Interest Rates Act 1983 (Vic), should be used to calculate interest in this case. It referred to my judgment in McCormick v Riverwood International (Australia) Pty Ltd [2000] FCA 32 in support of that submission. In that case I applied the penalty interest rate after citing the following observations of Heerey J in EMCL Pty Ltd v Esanda Finance Corporation Ltd (No 2) (1998) 160 ALR 382 (at 384): "I think there is obvious practical value in having the Federal Court applying the same interest rate as would be applied in litigation in the same State in which the case is being heard. It would be undesirable for there to be distinctions drawn from State to State, depending on whether it was thought the regime in any particular State did or did not impose a commercial rate of interest."
Case: Moses v Macferlan (1760) 97 ER 676
Outcome: discussed
In the seminal case of Moses v Macferlan (1760) 97 ER 676, Lord Mansfield identified the specific, but non-exhaustive, instances where the action for money had and received lay. These were (at 681): "for money paid by mistake; or upon consideration which happens to fail; or for money got through imposition, (express, or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to the laws made for the protection of persons under those circumstances." 90 Roxborough is the most recent High Court case dealing with a claim for restitution. In that case, five out of six judges referred to the instances identified by Lord Mansfield in Moses v Macferlan where an action for money had and received was recognised to arise. Gleeson CJ, Gaudron and Hayne J noted (at [15]) that Mason and Carter: "point out that cases decided in relation to the common indebitatus counts, although they involved an implied contract analysis which is now out of date "form the precedents which make up the legal matrix of restitution law"." (footnote omitted)
Case: Pasen v Buy-Rite Discounts Pty Ltd (1992) V ConvR |P54-431
Outcome: discussed
The first respondent submits that as the annual rental increase provided for under the lease is automatic, it cannot relevantly be described as a "Rent Review". It relies upon Pasen v Buy-Rite Discounts Pty Ltd (1992) V ConvR |P54-431 in support of this submission. That case dealt with the issue of whether a provision in a lease was a "rent review clause" for the purposes of s 10 of the Retail Tenancies Act 1986 (Vic). It was held that a clause that automatically increased the rent over the term of the lease was not a "rent review clause" for the purposes of the legislation. Brooking J, with whom Marks and Smith JJ agreed, stated (at 65,091): "In my view, a lease which fixes the rent for the whole of the term by enabling the rent throughout the term to be ascertained from within the four corners of the lease does not, according to the ordinary use of language, provide for a review of the rent if it provides for an increase or increases or decrease or decreases in the rent in the course of the term, whether by way of simply stating the new amount or amounts or by way of requiring a calculation to arrive at the new amounts or amounts. The rent is fixed by the lease itself throughout the term and the lease in fixing different amounts is not providing for a review of the rent: it is simply fixing a rent which is not uniform throughout the term." 42 The first respondent noted Brooking J's use of the term "fix" and the use of that term in 3.2.1 in support of its submission that clause 3.2.1 does not provide for a "Rent Review" 43 Ultimately, the hurdle that the first respondent would face in relation to its preferred interpretation of the term "Review Date" is that this term is expressly defined at the beginning of clause 3.2. Whether the process provided for in clause 3.2.1 can objectively be described as a "rent review" seems to be immaterial to me. The question that would need to be resolved is not what the ordinary meaning of the term is, but rather what the parties intended it to mean in the context of the lease. When the lease itself expressly says what the meaning of the term is, regard must be had to that meaning.
Case: Pavey &amp; Matthews Pty Ltd v Paul [1987] HCA 5 ; (1987) 162 CLR 221
Outcome: discussed
In Pavey &amp; Matthews Pty Ltd v Paul [1987] HCA 5 ; (1987) 162 CLR 221, the High Court rejected implied contract as the theoretical basis for claims in restitution. Instead, Deane J, with whom Mason and Wilson JJ generally agreed, stated (at 256-7): "unjust enrichment ... constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case , an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by ordinary processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a new or developing category of case ... " (emphasis added) 89 The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333. 91 Despite Deane J's overture in Pavey &amp; Matthews that "unjust enrichment" assists in determining whether the law should recognise new categories of restitution, in David Securities , the majority (Mason CJ, Deane Toohey, Gaudron and McHugh JJ) noted that (at 379): "it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality." 107 I do not accept the first respondent's "fall back" submission that I should determine what the "reasonable rent" would have been, and only order restitution of any amount that the applicant has paid over that sum. The amount by which it would have been "reasonable" to increase the rent is not relevant in these circumstances. As Deane J stated in Pavey &amp; Matthews (at 256), restitution does not provide "judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate". 108 The real question is what was the applicant was obliged to pay under the lease? While the applicant did make an offer to pay increased rent by reference to an independent assessment, the first respondent rejected that offer. It did so on the assumption that it was entitled to a higher rent. That assumption proved to be wrong. Accordingly, the agreement on foot between the parties provided that the rent payable was that which was paid, less the overpaid rent. The applicant, therefore, did not receive any additional benefit for its payment of the overpaid rent.
Case: Re Elgindata Ltd (No 2) [1993] 1 All ER 232
Outcome: referred to
The first respondent submits that if the case had been confined to the issue of the validity of the form of the notice, the trial would have taken less than a day. Accordingly, the first respondent contends that the claims which the applicant lost (and on which the first respondent says it had no reasonable prospects of success) unnecessarily and unduly prolonged the trial. It cites Keddie v Foxall [1955] VLR 320, Thorne v Doug Wade Consultants Pty Ltd [1985] VR 476 and Re Elgindata Ltd (No 2) [1993] 1 All ER 232 in support of the proposition that the costs the applicant would otherwise be entitled to should be reduced.
Case: Ritter v Godfrey [1920] 2 KB 47
Outcome: referred to
In general, costs follow the event and any departure from this principle should only occur in exceptional circumstances: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201; Cretazzo v Lombardi (1975) 13 SASR 4; and Ritter v Godfrey [1920] 2 KB 47 at 52-3.
Case: Telstra Corporation Ltd v First Netcom Pty Ltd [1998] FCA 656
Outcome: referred to
Independent of its specific rebuttals of the second respondent's contentions, the applicant claims that the second respondent's conduct during the proceeding in relation to discovery should disentitle it to any award of indemnity costs. It relies upon the comments of Einfeld J in Telstra Corporation Ltd v First Netcom Pty Ltd [1998] FCA 656 , where his Honour stated (at 4): "... while it is certainly true that some unreasonable conduct on the part of the party against whom indemnity costs are sought must be demonstrated, it must equally be true that the party seeking the indemnity costs must come to the Court with clean hands." 161 The applicant contends that this extract is authority for the proposition that, when the Court exercises its discretion on costs, it takes into account the conduct of the parties 162 The particular conduct the applicant relies upon relates to a notice of motion heard by a Registrar of this Court on 10 September 2004. That notice of motion sought further discovery from the second respondent. The applicant had specifically requested, amongst other things, documents relating to Mr Williams' knowledge of sales and leasing markets for industrial premises similar to the subject premises. It filed the notice of motion having not received what it considered to be a satisfactory response to its request. 170 Accordingly, the second respondent submits that the comments of Einfeld J in Telstra Corporation Ltd are wrong.
Case: Thorne v Doug Wade Consultants Pty Ltd [1985] VR 476
Outcome: referred to
The first respondent submits that if the case had been confined to the issue of the validity of the form of the notice, the trial would have taken less than a day. Accordingly, the first respondent contends that the claims which the applicant lost (and on which the first respondent says it had no reasonable prospects of success) unnecessarily and unduly prolonged the trial. It cites Keddie v Foxall [1955] VLR 320, Thorne v Doug Wade Consultants Pty Ltd [1985] VR 476 and Re Elgindata Ltd (No 2) [1993] 1 All ER 232 in support of the proposition that the costs the applicant would otherwise be entitled to should be reduced.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Outcome: referred to
In general, costs follow the event and any departure from this principle should only occur in exceptional circumstances: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201; Cretazzo v Lombardi (1975) 13 SASR 4; and Ritter v Godfrey [1920] 2 KB 47 at 52-3.
Case: Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20
Outcome: cited
The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333.
Case: Dellios v Zegarac [2006] FCA 1733
Outcome: referred to
13 December 2006, Marshall J refused an application for leave to appeal out of time against Phipps FM's decision. His Honour expressed the view that the Federal Magistrate's decision was "free from doubt such that it would be futile to extend the time within which to allow an appeal to be filed": see Dellios v Zegarac [2006] FCA 1733 at [19] .
Case: Dellios v Zegarac (No 2) [2006] FCA 1831
Outcome: referred to
15 December 2006, Marshall J also dealt with an application by Ms Zegarac to review the sequestration order made on 18 May 2006. Ms Zegarac sought to persuade his Honour that the Magistrate's judgment (on which the bankruptcy notice was founded) had been obtained by fraud. He dismissed the application to review the Registrar's decision: see Dellios v Zegarac (No 2) [2006] FCA 1831.
Case: General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
power to dismiss a proceeding on the ground that it is frivolous or vexatious or an abuse of process is not to be exercised lightly: see General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130. If, however, a proceeding is an abuse of process, it may be dismissed: see O 20 r 5 of the Federal Court Rules . A proceeding will constitute an abuse of process if it is "foredoomed to fail": see Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: cited
power to dismiss a proceeding on the ground that it is frivolous or vexatious or an abuse of process is not to be exercised lightly: see General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130. If, however, a proceeding is an abuse of process, it may be dismissed: see O 20 r 5 of the Federal Court Rules . A proceeding will constitute an abuse of process if it is "foredoomed to fail": see Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393.
Case: Zegarac v Dellios [2005] VSC 264
Outcome: referred to
Slavica Zegarac became bankrupt on 18 May 2006. A sequestration order was made by a Registrar on the petition of Mr Paul Dellios (trading as Dellios West &amp; Co). That order was based on a judgment given by the Magistrate's Court of Victoria dated 26 April 2005. An appeal against the decision of the Magistrate was dismissed by the Supreme Court on 28 June 2005: see Zegarac v Dellios [2005] VSC 264. Mr Gess Rambaldi and Mr Andrew Yeo were appointed joint and several trustees of the bankrupt estate of Ms Zegarac. They are members of the firm Pitcher Partners.
Case: Zegarac v Dellios [2006] FMCA 34
Outcome: referred to
12 October 2005, Ms Zegarac applied to the Federal Magistrates Court for an order setting aside the bankruptcy notice on the ground that she had a counter claim, set-off or cross demand against Mr Dellios which exceeded the amount of the debt owed to him. On 16 December 2005, Federal Magistrate Phipps dismissed the application. He provided reasons for that decision on 19 January 2006: see Zegarac v Dellios [2006] FMCA 34.
Case: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974
Outcome: considered
As Collier J observed in Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] , in the context of the exercise of the discretion concerning costs, the issue is whether there is anything about the particular proceedings to persuade me that it is appropriate to depart from the usual order. Other decided cases in which some but not all factors are present or cases that present different considerations are ' not particularly helpful ' ( Fetherston at [12] per Heerey J). I note that in no other case cited by the parties were all of the factors present that arise in these proceedings. For example, the application was only made after judgment was given ( Dibbs ; Access For All Alliance ) or the case could not be characterised as public interest litigation ( Access For All Alliance ).
Case: Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568
Outcome: considered
The relevance of the cost of public interest litigation to an individual was discussed by Wilcox J in Woodlands at 147. His Honour adopted the approach of Morling J in Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568 , namely that it was not in the public interest for a litigant to be heavily out-of-pocket for taking public-spirited action. The applicants do not seek financial gain from the litigation. Even if they do intend to fly with Virgin and do not wish to pay for a carer to accompany them, the costs of the litigation far outweigh that cost, so as to render it irrelevant to a question of personal financial, rather than public, benefit.
Case: British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71 , 313 N.R. 84
Outcome: cited
In Canada, the Supreme Court in British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71 , 313 N.R. 84 (at [40] [41] per LeBel J) and Little Sisters Book &amp; Art Emporium v Canada (Commissioner of Customs &amp; Review Agency) 2007 SCC 2 , J.E 2007-211 (at [36] [41] per Barstarache and LeBel JJ) discussed factors such as: &#8226; access to justice; &#8226; the right of indemnity for costs incurred by a successful party; &#8226; the need to establish special circumstances where an order is sought that the usual costs order not apply in public interest litigation; &#8226; the ability of a party to continue the litigation if an order were not made; &#8226; whether the litigant could show that he or she genuinely cannot afford to pay for the litigation and that no other realistic option exists for bringing the issues to trial; &#8226; the existence of a prima facie case of sufficient merit; and &#8226; special circumstances sufficient to satisfy the court to depart from the usual order for costs.
Case: Little Sisters Book &amp; Art Emporium v Canada (Commissioner of Customs &amp; Review Agency) 2007 SCC 2 , J.E 2007-211
Outcome: cited
In Canada, the Supreme Court in British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71 , 313 N.R. 84 (at [40] [41] per LeBel J) and Little Sisters Book &amp; Art Emporium v Canada (Commissioner of Customs &amp; Review Agency) 2007 SCC 2 , J.E 2007-211 (at [36] [41] per Barstarache and LeBel JJ) discussed factors such as: &#8226; access to justice; &#8226; the right of indemnity for costs incurred by a successful party; &#8226; the need to establish special circumstances where an order is sought that the usual costs order not apply in public interest litigation; &#8226; the ability of a party to continue the litigation if an order were not made; &#8226; whether the litigant could show that he or she genuinely cannot afford to pay for the litigation and that no other realistic option exists for bringing the issues to trial; &#8226; the existence of a prima facie case of sufficient merit; and &#8226; special circumstances sufficient to satisfy the court to depart from the usual order for costs.
Case: McLean v Airlines of Tasmania Pty Ltd (1996) EOC 92-862
Outcome: considered
The parties have referred to only one other case that has raised similar issues under the Act, McLean v Airlines of Tasmania Pty Ltd (1996) EOC 92-862. In that case the Human Rights &amp; Equal Opportunity Commission considered discrimination by an airline on the basis of disability. The applicant was seeking to fly on a small plane which was not easily wheelchair accessible and which had no cabin attendant. The Commission found that the discrimination was not unlawful as, in light of the facts of that case, it was reasonable for the airline to refuse access to the disabled applicant. While similar, these proceedings raise different and new issues to those addressed in McLean . 33 It is not seriously contended by Virgin that there is no question of public interest raised in the proceedings. Virgin submits, however, that the claims involve self interest on the part of the applicants as well as public interest. This does not derogate from the broader impact of the ITC. The ability of disabled persons to fly with Virgin, a major commercial airline in Australia, without the extra cost of a carer raises questions of public interest beyond the private interests of the applicant. 34 Claims for financial compensation by each of the applicants have been abandoned. Accordingly, the amount of damages that the applicants may seek to recover is not a factor that assists in the exercise of the Court's discretion.
Case: Minns v State of NSW (No. 2) [2002] FMCA 197
Outcome: cited
The parties agree on many of the factors to be taken into account in the exercise of the Court's discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include: &#8226; the timing of the application ( Sacks v Permanent Trustee Australia Ltd [1993] FCA 502 ; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]); &#8226; the complexity of the factual or legal issues raised in the proceedings ( Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J); &#8226; the amount of damages that the applicant seeks to recover ( Hanisch at 387) and the extent of any other remedies sought ( Flew at [48]); &#8226; whether the applicant's claims are arguable and not frivolous or vexatious ( Flew at [15]); &#8226; the undesirability of forcing the applicant to abandon the proceedings ( Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and &#8226; whether there is a public interest element to the case ( Woodlands at 146; Flew at [23], [47]).
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: applied
The fact that the proceedings are brought otherwise than for the personal or financial gain of the applicant does not detract from the general proposition that ordinarily costs follow the event ( Ruddock at [18]). The fact that litigation can be characterised as being "in the public interest" does not, of itself, mean that the usual order is not made. However, the nature and purpose of the proceedings are still relevant in the exercise of the discretion to award costs and the exercise of the discretion takes account of all of the circumstances ( Ruddock at [18] [19]; [24]). There is no error in taking into account in a decision whether to award costs matters such as the absence of personal gain on the part of the applicants, the fact that a significant number of members of the public may be affected and that the basis of the challenge is arguable and raises "significant issues" as to the interpretation and application of statutory provisions ( Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [20] per Gaudron and Gummow JJ, at [49] per McHugh J). The same circumstances are relevant to an order under Order 62A r 1 which, while making provision for the costs of a successful party, departs from the usual order that would otherwise be made.