mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730
Outcome: cited
is also for Clough to establish a case for the continuation of the injunction. No onus lies on ONGC to discharge the injunctions: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731. Accordingly, Clough requires to establish that there is a serious issue(s) to be tried. I will firstly deal with the orders sought under paragraph 1 of the Notice of Motion. This involves a consideration of whether Clough has established anew that it has a prima facie case to maintain the grant of service ex juris on ONGC and whether there are any serious issues to be tried to sustain injunctive relief, either pending a trial of issues in this Court, or were the matter to be referred to the Arbitrators in India, by way of a protective interim measure in aid of the arbitration. This, in particular, requires a detailed consideration of the following:
Case: Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31
Outcome: cited
relation to the application to set aside service of the Amended Application on ONGC, an application under O 9 r 7 of the Federal Court Rules (FCR) results in a review of the original decision to grant leave to serve ex juris and is a rehearing conducted on the basis of additional materials, recognising that a respondent should have "the opportunity to put before the Court any additional facts or arguments which might suggest that leave ought not to have been granted": Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche Limited (2003) 130 FCR 317 at [53] per Carr J. The onus remains on the applicant to satisfy the Court, in light of those additional materials and facts and arguments, that leave should have been granted: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 at 564.
Case: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: cited
relation to the application to set aside service of the Amended Application on ONGC, an application under O 9 r 7 of the Federal Court Rules (FCR) results in a review of the original decision to grant leave to serve ex juris and is a rehearing conducted on the basis of additional materials, recognising that a respondent should have "the opportunity to put before the Court any additional facts or arguments which might suggest that leave ought not to have been granted": Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche Limited (2003) 130 FCR 317 at [53] per Carr J. The onus remains on the applicant to satisfy the Court, in light of those additional materials and facts and arguments, that leave should have been granted: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 at 564.
Case: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557
Outcome: cited
to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon &amp; MP Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar &amp; Food Industries Corporation [1996] 4 All ER 563 at 571.
Case: Western Australian v Vetter Tritter (1991) 30 FCR 102
Outcome: cited
maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].
Case: Bahonko v Sterjov [2007] FCA 1377
Outcome: followed
An appeal to this Court does not operate as a stay of execution or of proceedings under the judgment appealed: Federal Court Rules 1979 (Cth), O 52, r 17. The " general principle " applied in this Court is that an appeal does not operate as a stay: Bahonko v Sterjov [2007] FCA 1377 at [6] (Appl'd: Bahonko v Sterjov [2007] FCA 1556 at [8] ). But s 29(1)(b) of the Federal Court of Australia Act 1976 (Cth) does confer a discretionary power to make an order suspending the operation of an order previously made. That subsection provides as follows: Stay of proceedings and suspension of orders (1) Where an appeal to the Court from another court has been instituted: ... (b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
Case: Bahonko v Sterjov [2007] FCA 1556
Outcome: cited
An appeal to this Court does not operate as a stay of execution or of proceedings under the judgment appealed: Federal Court Rules 1979 (Cth), O 52, r 17. The " general principle " applied in this Court is that an appeal does not operate as a stay: Bahonko v Sterjov [2007] FCA 1377 at [6] (Appl'd: Bahonko v Sterjov [2007] FCA 1556 at [8] ). But s 29(1)(b) of the Federal Court of Australia Act 1976 (Cth) does confer a discretionary power to make an order suspending the operation of an order previously made. That subsection provides as follows: Stay of proceedings and suspension of orders (1) Where an appeal to the Court from another court has been instituted: ... (b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
Case: Bryant v Commonwealth Bank of Australia [1996] HCA 3 ; (1995) 134 ALR 460
Outcome: followed
The weight of authority in this Court is that the discretion conferred by s 29(1) is one not to be fettered by requiring the demonstration of special or exceptional circumstances: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13] per French J. An order, however, is not made " simply for the asking ": Bryant v Commonwealth Bank of Australia [1996] HCA 3 ; (1995) 134 ALR 460 at 463 per Kirby J.
Case: Cameron's Unit Services Pty Ltd v Kevin R Whelpton &amp; Associates Pty Ltd (1986) 13 FCR 46
Outcome: followed
Any order for security, even in a quantum less than that which is sought, it is recognised, has a real likelihood of stifling the appeal now before this Court: Cameron's Unit Services Pty Ltd v Kevin R Whelpton &amp; Associates Pty Ltd (1986) 13 FCR 46 at 52 3.
Case: Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942
Outcome: followed
The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: &#8226; The prospects of success; &#8226; The quantum of risk that a costs order will not be satisfied; &#8226; Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; &#8226; Whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; Whether there are aspects of public interest which weigh in the balance against such an order; &#8226; Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 23 A principal submission advanced by all Respondents, and a submission in accordance with the considerations summarised by Bennett J in Croker, contended that the Notice of Appeal had such limited prospects of success as to be in itself a persuasive reason why security should be ordered. 24 The Notice of Appeal as filed sets forth some 27 grounds of appeal. Ms Lawrance was invited on 17 March 2008 to consider whether she wished to pursue all of those grounds or whether she wished to narrow or confine her appeal. On 18 March 2008 she adhered to the grounds set forth. 25 An appellant is of course entitled to raise for resolution such grounds of appeal as may properly emerge from the decision the subject of appeal. For the purposes of the present proceedings, each of those grounds have been separately considered.
Case: Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68
Outcome: followed
Applications for security must be made, as has occurred in the present proceedings, promptly: Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68 at 71. 16 At the outset of the hearing of the two Motions seeking security, the evidence to be relied upon was, in the usual course, identified. 17 In addition, Ms Lawrance indicated that she wished to adduce evidence as to events which had occurred on 15 February 2008. She outlined the nature of the evidence that she sought to adduce. Although such evidence had not been filed in accordance with earlier directions made on 4 February 2008, Ms Lawrance indicated that she was not previously sure as to how she should proceed.
Case: East Grace Corp v Xing [2005] FCA 219
Outcome: followed
The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: &#8226; The prospects of success; &#8226; The quantum of risk that a costs order will not be satisfied; &#8226; Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; &#8226; Whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; Whether there are aspects of public interest which weigh in the balance against such an order; &#8226; Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 49 The quantification of any order for security is " certainly not an exact science ": East Grace Corp v Xing [2005] FCA 219 at [6] per French J. 50 Relevant to any quantification is the anticipated duration of an appeal, the complexity of the issues to be addressed and the extent to which the preparation of written submissions would facilitate the expeditious resolution of the appeal. The fact is that the Notice of Appeal as filed in this Court sets forth some 27 " grounds of appeal ". A review of those grounds only supports a conclusion that the appeal would most probably take two days, if not more. It is, perhaps, inevitable that an unrepresented appellant may take longer to develop arguments and submissions than a party represented by experienced counsel. The hearing of the present Motions seeking security was heard over a two-day period. 51 The more wide-ranging the challenge to a decision on appeal, however, the greater may be the reluctance to deny to those parties who have already vindicated their position at first instance the protection of an order for security. The more confined the grounds which an appellant may wish to pursue, the less persuasive may be the consideration that an appellant is " dragging his opponent from one Court to another " and seeking to re-agitate some, if not all, of the grievances resolved at first instance.
Case: Freeman v National Australia Bank Ltd [2004] FCA 601
Outcome: followed
By reason of her impecuniosity, there is considered to be a real risk that any costs order which may ultimately be made against Ms Lawrance may not be paid. Such has been the fate of the Respondents to date in other proceedings. In exercising the discretion to order that security be provided, it is relevant to take into account any outstanding costs orders which remain unsatisfied: Freeman v National Australia Bank Ltd [2004] FCA 601 at [14] . Ms Lawrance has not paid the costs ordered to be paid by the Federal Magistrate, including not only the orders as to costs in favour of the present Respondents, but also orders as to costs made by the Federal Magistrate against Ms Lawrance in favour of persons not parties to the proceedings before that Court. Those costs orders included, for example, an order that Ms Lawrance pay the costs incurred by the Chief Executive Officer of Phillips Fox in relation to the unsuccessful application for their joinder as parties to the Federal Magistrates Court proceedings. A like order for costs was made against Ms Lawrance in favour of Dr Margaret Pickles in relation to an unsuccessful application for joinder.
Case: James v ANZ Banking Group Ltd (1985) 9 FCR 442
Outcome: followed
The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: &#8226; The prospects of success; &#8226; The quantum of risk that a costs order will not be satisfied; &#8226; Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; &#8226; Whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; Whether there are aspects of public interest which weigh in the balance against such an order; &#8226; Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J. 44 It may readily be accepted that poverty is no bar to litigation: James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 445. And where a natural person has been ordered to provide security, there is usually present some factor in addition to impecuniosity, such as lack of prospects of success: Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] [33].
Case: Knight v Beyond Properties Pty Ltd [2005] FCA 764
Outcome: followed
It may readily be accepted that poverty is no bar to litigation: James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 445. And where a natural person has been ordered to provide security, there is usually present some factor in addition to impecuniosity, such as lack of prospects of success: Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] [33].
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: followed
The Applications made by all Respondents seeking security for costs invoke s 56 of the Federal Court of Australia Act 1976 (Cth). That section confers a " broad power ": James v ANZ Banking Group Ltd (1985) 9 FCR 442 at 444 per Toohey J. The general principles relevant to the exercise of the discretion are not in dispute and have been conveniently set out by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 and summarised by Bennett J in Croker v Sydney Institute of TAFE (New South Wales) [2003] FCA 942. In Croker , Bennett J at [26] listed the considerations to be taken into account as follows: &#8226; The prospects of success; &#8226; The quantum of risk that a costs order will not be satisfied; &#8226; Whether the making of an order would be oppressive in that it would stifle a reasonable arguable claim; &#8226; Whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; Whether there are aspects of public interest which weigh in the balance against such an order; &#8226; Whether there are any particular discretionary matters peculiar to the circumstances of the case. A determination as to whether security should be awarded and, if so, the quantum of such security, is essentially one of risk management between the parties having regard to their legitimate interests: East Grace Corp v Xing [2005] FCA 219 at [5] per French J.
Case: Lawrance v Commonwealth (No 5) [2007] FMCA 1934
Outcome: cited
On 30 November 2007 a Federal Magistrate dismissed an application brought by the now Appellant in the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934. In that Court, the Federal Magistrate concluded that Ms Lawrance had not established any conduct contrary to the Sex Discrimination Act 1975 (Cth) or the Disability Discrimination Act 1992 (Cth) and had not established any basis for the grant of relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 2 Ms Lawrance has filed in this Court a Notice of Appeal seeking to challenge the decision made on 30 November 2007. 3 Now before the Court are three Applications : the first is an Application made by Ms Lawrance seeking to suspend the order as to costs made against her by the Federal Magistrate; the second is an Application made on behalf of the State of New South Wales (the Second Respondent) seeking an order that security for costs be provided and seeking a stay of proceedings until such time as security is provided; and the third is a like Application made on behalf of the remaining respondents.
Case: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87
Outcome: followed
The weight of authority in this Court is that the discretion conferred by s 29(1) is one not to be fettered by requiring the demonstration of special or exceptional circumstances: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13] per French J. An order, however, is not made " simply for the asking ": Bryant v Commonwealth Bank of Australia [1996] HCA 3 ; (1995) 134 ALR 460 at 463 per Kirby J.
Case: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424
Outcome: cited
As submitted by Westpac the language of the 1995 Kirszbaum Guarantee is unequivocal. The Applicants did not contend to the contrary. It is a guarantee that covers all moneys that Middleton Nominees " is or becomes liable to pay [Westpac] under another guarantee or indemnity ". Accordingly, the principle that " ambiguous contractual provisions should be construed in favour of the [guarantor]" does not arise: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 , 561 and Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 , 433-437 [17] [23].
Case: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549
Outcome: cited
As submitted by Westpac the language of the 1995 Kirszbaum Guarantee is unequivocal. The Applicants did not contend to the contrary. It is a guarantee that covers all moneys that Middleton Nominees " is or becomes liable to pay [Westpac] under another guarantee or indemnity ". Accordingly, the principle that " ambiguous contractual provisions should be construed in favour of the [guarantor]" does not arise: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 , 561 and Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 , 433-437 [17] [23].
Case: Chacmol Holdings Pty Ltd v Handberg (2005) 216 ALR 748
Outcome: cited
Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).