mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Rowland v Divall [1923] 2 KB 500
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Wardley Australia Limited and Another v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
To recover damages pursuant to s 82 of the Act an applicant must prove that loss or damage suffered was 'by' the conduct claimed to be in breach of the relevant parts of the Act. The meaning of the word 'by' in s 82 was considered by Mason J in Wardley Australia Limited and Another v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 where his Honour said: '...s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E &amp; MH) Pty Ltd (1001) 171 CLR 506; 65 ALJR 335; 99 ALR 423; 12 MVR 353; [1991] Aust Torts Reports 81-095; 9 BCL 215, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act'.
Case: Tran v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 77
Outcome: referred to
On 10 February 2006, I delivered judgment in this proceeding, refusing an application for an extension of time within which to appeal the decision of a Federal Magistrate: Tran v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 77 (" Tran No 1 "). In that judgment, I indicated that there was an outstanding issue to de determined. That issue was whether the applicant's solicitor should be ordered to repay to the applicant some portion of the costs that the applicant was ordered to pay to the respondents. 2 Order 62 r 9(1)(c) of the Federal Court Rules provides as follows: "Without limiting the Court's discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a legal practitioner is responsible (whether personally or through a servant or agent), the Court may, after giving the legal practitioner a reasonable opportunity to be heard, do any of the following: ... (c) direct the legal practitioner to repay to the client, costs which the client has been ordered to pay to another party;". 3 Order 62 r 9 was introduced in its present form in 2003 by the Federal Court Amendment Rules (No 3) 2003 (Cth). The rule in its earlier form was unduly restrictive. It required a reference to, and report by, a taxing officer before the power to order a solicitor to repay to his or her client costs ordered to be paid by the client to another party could be invoked. The rule in its previous form appears to have been rarely used. It is possible that because of its restrictive nature, costs orders against solicitors have tended to be dealt with in this Court pursuant to s 43 of the Federal Court Act 1976 (Cth). That section provides, in substance, that the award of costs is in the discretion of the Court or Judge. Plainly s 43 confers upon the Court a wide discretion, though of course that discretion must be exercised judicially.
Case: De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Outcome: referred to
In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, French J discussed, at 546, the restrictions of the previous O 62 r 9. His Honour also stated that the rule did not operate to constrain the broad powers provided for under s 43.
Case: White Industries (Qld) Pty Ltd v Flower &amp; Hart (1998) 156 ALR 169
Outcome: referred to
The principles under which an order for costs should be made against a legal practitioner for unreasonably instituting or maintaining a proceeding or defence, at least in relation to s 43, suggest that this power should be used sparingly. Indeed, in Levick , the Full Court suggested that in order to invoke the power, there must be something akin to an abuse of process, that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success. The Full Court referred to White Industries (Qld) Pty Ltd v Flower &amp; Hart (1998) 156 ALR 169 at 236 per Goldberg J to the same effect. See also Re Bendeich (No 2) (1994) 53 FCR 422 at 426-7 per Drummond J.
Case: Re Bendeich (No 2) (1994) 53 FCR 422
Outcome: referred to
The principles under which an order for costs should be made against a legal practitioner for unreasonably instituting or maintaining a proceeding or defence, at least in relation to s 43, suggest that this power should be used sparingly. Indeed, in Levick , the Full Court suggested that in order to invoke the power, there must be something akin to an abuse of process, that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success. The Full Court referred to White Industries (Qld) Pty Ltd v Flower &amp; Hart (1998) 156 ALR 169 at 236 per Goldberg J to the same effect. See also Re Bendeich (No 2) (1994) 53 FCR 422 at 426-7 per Drummond J.
Case: Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582
Outcome: considered
In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J reviewed the authorities in the context of an application by the respondent Minister for an order that the unsuccessful applicant's solicitor be ordered to pay the costs of the application jointly with the applicant. His Honour accepted that the Court had jurisdiction to make an order for costs against a solicitor. However, he declined in the exercise of his discretion to do so. 8 It seems that the application before Mansfield J was brought under s 43, and his Honour regarded the test that had to be satisfied before such an order was made pursuant to that section as requiring a finding that the solicitor's conduct was tantamount to an abuse of process. He accepted that a hopeless case might support the inference that there was some ulterior purpose for the proceeding. However, he also noted the competing principle that a party is entitled to have a solicitor act for the party even in an unmeritorious case. He referred to Ridehalgh v Horsefield [1994] Ch 205 at 233, where the Court of Appeal said: "A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail." 11 In Bagshaw v Scott [2005] FCA 104 , Bennett J adopted a similar approach to that of Mansfield J in Kumar . Her Honour said, at [44], that the power to order costs against solicitors had to be exercised with care and discretion, and only in clear cases. There had to be something which amounted to a serious dereliction of duty. Simply instituting or maintaining on instructions proceedings which had no real prospect of success was not such a dereliction of duty. 12 In Kumar , Mansfield J referred to O 62 r 9 in its present form. Having concluded that there was no warrant for ordering the solicitor in that case to pay costs, pursuant to s 43, he went on to say that this did not excuse the solicitor from the obligation to provide appropriate advice to the client before instituting proceedings. His Honour then said, at [15], that if the client did not take that advice, the solicitor "has the duty to the Court not to incur costs improperly or without reasonable cause". He referred to this power as the so called "wasted costs jurisdiction". 13 It appears that his Honour drew a distinction between instituting proceedings that were essentially hopeless, where something akin to an abuse of process had to be shown before costs could be ordered, and conducting proceedings in a manner that involved costs being improperly incurred, or at least incurred without reasonable cause. On any view, there will be some overlap between the principles to be applied when considering whether to award costs against a legal practitioner under s 43, or under O 62 r 9(1).
Case: Ridehalgh v Horsefield [1994] Ch 205
Outcome: referred to
It seems that the application before Mansfield J was brought under s 43, and his Honour regarded the test that had to be satisfied before such an order was made pursuant to that section as requiring a finding that the solicitor's conduct was tantamount to an abuse of process. He accepted that a hopeless case might support the inference that there was some ulterior purpose for the proceeding. However, he also noted the competing principle that a party is entitled to have a solicitor act for the party even in an unmeritorious case. He referred to Ridehalgh v Horsefield [1994] Ch 205 at 233, where the Court of Appeal said: "A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail."
Case: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
Outcome: referred to
A somewhat different approach was taken by the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 (" Steindl "), where Davies JA (with whom Williams JA and Philippides J agreed) rejected the proposition that it was not improper for a legal representative to present a case which that legal representative knew, or ought to know, was hopeless. Mansfield J regarded himself as bound to follow the approach in Levick , in preference to that adopted in Steindl . He therefore declined to make the order sought. 14 It is unnecessary for me to say anything further about s 43. It may be arguable that the principles stated in Levick require some further consideration in the light of the later reasoning of the Queensland Court of Appeal in Steindl . However, any such reconsideration will have to await the attention of a Full Court.
Case: Bagshaw v Scott [2005] FCA 104
Outcome: referred to
In Bagshaw v Scott [2005] FCA 104 , Bennett J adopted a similar approach to that of Mansfield J in Kumar . Her Honour said, at [44], that the power to order costs against solicitors had to be exercised with care and discretion, and only in clear cases. There had to be something which amounted to a serious dereliction of duty. Simply instituting or maintaining on instructions proceedings which had no real prospect of success was not such a dereliction of duty.
Case: Admiralty Commissioners v SS Susquehanna [1926] AC 655
Outcome: followed
In the Hebridean Coast [1961] AC 545 at 576-578, Lord Reid applied there principles to a case where a government corporation claimed damages for the detention of a nonprofitearning vessel while she was being repaired. His Lordship distinguished this from the case of a profit-earning ship where the plaintiff had to prove '... the probability that she would have earned so much money if her owner could have used her' ([1961] AC at 577). With a nonprofit-earning ship, if no harm were proved apart from the mere fact that the owner is deprived of her services during the period of repairs, the Court awards damages based on interest and depreciation on the value of the ship ([1961] AC at 578 per Lord Reid, 580 per Lords Morton of Henryton and Tucker, 583 per Lord Morris of Borth-y-Gest; The Greta Holme [1897] AC 596). In Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 664, Lord Sumner said that in such an assessment 'the practice of treating the injured ship, by a sort of personification, as a separate claimant is too inveterate to be disturbed now.'
Case: Anthanasopoulos v Moseley [2001] NSWCA 266 ; (2001) 52 NSWLR 262
Outcome: followed
And in Anthanasopoulos v Moseley [2001] NSWCA 266 ; (2001) 52 NSWLR 262 the Court of Appeal of the Supreme Court of New South Wales allowed car owners (or their insurer) who were deprived of the use of their vehicles to recover the cost of hire of a substitute vehicle while theirs underwent repair even though they were not out of pocket for that hire. That Court applied The Greta Holme [1897] AC 596 on the basis that injury to non income producing property which deprives a party of the use of the property is compensable and held that the claim was for general, not special damages (see 52 NSWLR at 276 [76] per Ipp A-JA; see too at 273 [54], 274 [58] per Beazley JA).
Case: Banco de Portugal v Waterlow &amp; Sons Ltd [1932] UKHL 1 ; [1932] AC 452
Outcome: followed
In Banco de Portugal v Waterlow &amp; Sons Ltd [1932] UKHL 1 ; [1932] AC 452 at 506 Lord Macmillan held that where the sufferer from a breach of contract finds itself in consequence of that breach placed in a position of embarrassment, the measures it may be driven to adopt in order to extricate itself ought not to be weighed in nice scales at the instance of the party whose breach of contract had occasioned the difficulty. His Lordship continued: 'It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.'
Case: Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292
Outcome: applied
The principle applicable to the right of a shipowner to recover from a wrongdoer the cost of hiring a substitute vessel while its own vessel is being repaired as a result of the tort, was stated by Viscount Sumner in SS Strathfillan v SS Ikala [1929] AC 196 at 205 (Lord Buckmaster agreeing at 205 and Lord Warrington of Clyffe gave a concurring speech at 211-212: see too per Scrutton LJ in The York [1929] P 178 at 184; The Yorkshireman (1827) 2 Hagg Adm 30n; 166 ER 155; cp: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 240-241 [1062] -1067] per Finn J; Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 300-302, 306, 313) thus: 'If... the [plaintiff's] case is to be that the delay upset the general current of their trade, which had to be maintained in spite of it, I think that the extent and cost of this upset must be proved and must be causally connected with the collision in accordance with the ordinary rules of law as to damage. A ship's day is not like a unit of currency, always good for so many shillings. It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay.' 89 I am satisfied that it was necessary for Consort to charter the Noumea Express as a substitute vessel in July and August 2000 while the Gazelle Coast underwent the extensive repairs and restoration work then undertaken. I am of opinion that the claim for the hire of the Noumea Express is reasonable. Mr McInnes noted that some repairs carried out at this time were not referable to any purchase defect. I have considered those items and they appear to me, based on their description, to be of a relatively minor or routine nature and to be of a kind that could be undertaken concurrently with the major work. A shipowner can have other work performed while its vessel is undergoing repairs caused by a wrongdoer without being obliged to account, as it were, for extra costs incurred: see Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 302-304 where Viscount Jowitt accurately summarizes the authorities.
Case: Czarnikow Ltd v Koufos [1967] UKHL 4 ; [1969] 1 AC 350
Outcome: referred to
In assessing damages for breach of contract the Court seeks to place the party who sustains a loss by reason of the breach in a position, so far as money can do it, which is the same as if the contract had been performed: Robinson v Harman (1848) 1 Ex 850 at 855 [154 ER 363 at 365]; Burns v M.A.N. Automotive (Aust) Pty Limited [1986] HCA 81 ; (1986) 161 CLR 653 at 658, 667, 672-673. Wilson, Deane and Dawson JJ explained that this general principle is limited by a rule laid down by the Court of Exchequor in Hadley v Baxendale (1854) 9 Ex 341 at 354 [156 ER 145 at 151] (161 CLR at 667). That rule held that the damages recoverable from a breach of contract were such as might fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such a breach of contract itself, as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Their Honours went on to say that these principles had been discussed by Gibbs J in Wenham v Ella [1972] HCA 43 ; (1972) 127 CLR 454 at 471-472 where he approved the following exposition of Lord Reid ( Czarnikow Ltd v Koufos [1967] UKHL 4 ; [1969] 1 AC 350 at 385): 'The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realized that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.'