mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72. If an appeal raises a novel question of ' much general importance and some difficulty ' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal.
Case: Repatriation Commission v Cornelius (2002) 69 ALD 250
Outcome: followed
Repatriation Commission v Cornelius (2002) 69 ALD 250 Branson J observed at [11] that costs certificates may be granted in the following circumstances: The restricted circumstances in which costs certificates may be granted indicates that the Act is not intended to provide, in effect, an alternative source of legal aid but is intended to advance a more specific public interest. That public interest would seem to be the alleviation of the costs burden that can fall on an individual who appropriately and successfully institutes a proceeding before the Administrative Appeals Tribunal or a federal court yet thereafter finds himself or herself a respondent to a successful "appeal" on a question of law or as to the amount of damage awarded at first instance. This public interest as described above appears to be similar to the factual scenario of the present proceedings. Nothing in this Court's decision to uphold Austrade's appeal form the AAT suggests that Isaac Jewellery did not 'appropriately and successfully' institute a proceeding before the AAT, and Isaac Jewellery now finds itself as a respondent to the successful appeal on a question of law by Austrade. Austrade has obtained a benefit of a similar kind to that considered in Repatriation Commission v Milenz [2007] FCA 50. Finn J at [4] found that the successful appellant obtained a benefit in ensuring that ' administrative decisions made under the Veterans' Entitlement Act are made according to law ' and thus 'making a respondent ... bear the costs of the appeal in these circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act ' . By analogy, Austrade has an interest in ensuring that decisions made under the EMDG Act are made by the application of the correct principles. In this respect a benefit has resulted in Austrade's favour from the determination of the appeal. Further, the respondent in this case is a small business of limited financial means and thus making Isaac Jewellery bear the full cost of the appeal would undercut the public interest as described by Branson J at [11] of Cornelius .
Case: Repatriation Commission v Milenz [2007] FCA 50
Outcome: followed
has obtained a benefit of a similar kind to that considered in Repatriation Commission v Milenz [2007] FCA 50. Finn J at [4] found that the successful appellant obtained a benefit in ensuring that ' administrative decisions made under the Veterans' Entitlement Act are made according to law ' and thus 'making a respondent ... bear the costs of the appeal in these circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act ' . By analogy, Austrade has an interest in ensuring that decisions made under the EMDG Act are made by the application of the correct principles. In this respect a benefit has resulted in Austrade's favour from the determination of the appeal. Further, the respondent in this case is a small business of limited financial means and thus making Isaac Jewellery bear the full cost of the appeal would undercut the public interest as described by Branson J at [11] of Cornelius .
Case: Re Mersey Railway Co (1888) 37 Ch D 610
Outcome: referred to
Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72. If an appeal raises a novel question of ' much general importance and some difficulty ' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal.
Case: Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229
Outcome: referred to
applicant ('Austrade') submits that it is entitled to an order that the respondent ('Isaac Jewellery') pay its costs in consequence of the determination of the Court in favour of Austrade that the challenged decision of the Administrative Appeals Tribunal ('the Tribunal') be set aside and be re-determined. Austrade submits that in accordance with the usual principle that costs follow the event, an award of costs should be made in its favour. In support of its submission Austrade relies upon the decision of the Full Bench in Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229 which extensively considered the principles to be applied by the Court when exercising its discretion to award costs. Ruddock was followed in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651 and Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1. In Ruddock the Full Court considered the principles governing the award of costs at [9]-[25]. Since there is no challenge to those principles it is unnecessary to restate them, save to observe that the decision confirms the practice that a successful party is usually entitled to be compensated for its costs by an award made against the unsuccessful party. The Court does not consider that there is any wide public interest established in the result of this appeal to justify an order that each party pay its own costs, as was ordered in the authorities relied upon by Isaac Jewellery and the rational for which was considered in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72. If an appeal raises a novel question of ' much general importance and some difficulty ' (see Ruddock at [17]), the appeal Court may refuse an order for costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 at 619 and 621. No such consideration arises in the present appeal.
Case: The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651
Outcome: cited
applicant ('Austrade') submits that it is entitled to an order that the respondent ('Isaac Jewellery') pay its costs in consequence of the determination of the Court in favour of Austrade that the challenged decision of the Administrative Appeals Tribunal ('the Tribunal') be set aside and be re-determined. Austrade submits that in accordance with the usual principle that costs follow the event, an award of costs should be made in its favour. In support of its submission Austrade relies upon the decision of the Full Bench in Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229 which extensively considered the principles to be applied by the Court when exercising its discretion to award costs. Ruddock was followed in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651 and Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1.
Case: Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1
Outcome: cited
applicant ('Austrade') submits that it is entitled to an order that the respondent ('Isaac Jewellery') pay its costs in consequence of the determination of the Court in favour of Austrade that the challenged decision of the Administrative Appeals Tribunal ('the Tribunal') be set aside and be re-determined. Austrade submits that in accordance with the usual principle that costs follow the event, an award of costs should be made in its favour. In support of its submission Austrade relies upon the decision of the Full Bench in Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229 which extensively considered the principles to be applied by the Court when exercising its discretion to award costs. Ruddock was followed in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCA 1863 ; (2007) 98 ALD 651 and Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2008] FCAFC 19 ; (2008) 101 ALD 1.
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: followed
The High Court has recognised that contempt proceedings are civil, rather than criminal in nature. In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534 the High Court, in addressing the standard of proof to be applied in contempt proceedings, indicated that contempt proceedings are essentially criminal in nature. However, the majority indicated that the rights and procedural obligations ordinarily associated with a criminal trial are dispensed with in contempt proceedings, stating (at 534): 'It was submitted by counsel for the appellant that, if contempt proceedings are essentially criminal in nature, there is no power to order a retrial of the charges against the appellant ... However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing. 8 The Court's reasons show that contempt proceedings, or at least the procedure to be adopted in them, is civil rather than criminal in nature even though a Court may find that a person has committed a criminal contempt.
Case: McGibbon v Linkenbagh (1996) 41 ALD 219
Outcome: cited
In McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 Kiefel J said: 'The principle established by Dietrich v R [1992] HCA 57 ; (1992) 109 ALR 385; 177 CLR 292 as to the use of a court's inherent powers to stay or adjourn proceedings until legal representation is obtained, where it concludes it is necessary for a fair trial, refers only to criminal proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 124 ALR 513, 522; Williams v Official Trustee (1994) 122 ALR 585, 600 . It is not authority for the proposition that in other proceedings or inquiries such a step would be required by dictates of fairness, even where someone faced potentially serious consequences.'
Case: Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121
Outcome: cited
In Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 , Mansfield J said (at [61]): 'The principle recognised in Dietrich ... is a feature of the entitlement to procedural fairness, but it is confined to serious criminal proceedings. That decision was not intended to apply in respect of civil proceedings: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 328-329 per Mason CJ, Dawson, Toohey and McHugh JJ.'
Case: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 ; (2000) 101 FCR 20
Outcome: cited
In Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 ; (2000) 101 FCR 20, Sackville, Marshall and Lehane JJ in a joint judgment said (at [22] [24]): 'The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309. In that case, the issue was whether a stay should be granted of an inquiry under s 475 of the Crimes Act 1900 (NSW) because of doubts concerning the guilt of a convicted person. The question arose because the State had refused to pay the costs of legal representation for certain witnesses required to appear before the inquiry. The joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ observed (at 328) that the principle established by Dietrich "is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused&#180;s right to a fair trial". 17 In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.'
Case: Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139
Outcome: cited
In Commissioner of Taxation (Cth) v La Rosa (2002) 196 ALR 139, Nicholson J considered that the Dietrich principle did not apply in the context of a hearing before the Aministrative Appeals Tribunal, stating (at [120]): ' Dietrich decided that the common law of Australia does not recognise the right of an accused person to be provided with counsel at the public expense but the courts have power to stay criminal proceedings that will result in an unfair trial. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20the Full Court of the Federal Court held that the Dietrich principle had no application in the circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of Nguyen . There the court referred to the decision in New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309; 124 ALR 513 where the limited scope of the Dietrich principle was recognised, Mason CJ, Dawson, Toohey and McHugh JJ stating it was concerned with the right to a fair trial of a party to criminal proceedings: at CLR 328. The Full Court in Nguyen considered it was clear the High Court did not favour the extension of the Dietrich principle into the field of administrative review.'
Case: Rivera v United States of America [2004] FCAFC 154
Outcome: cited
More recently, in Rivera v United States of America [2004] FCAFC 154 , Heerey, Sundberg and Crennan JJ considered whether the principle in Dietrich applied to a review of extradition proceedings under s 21(1) of the Extradition Act 1988 (Cth) ('the Act'). Their Honours firstly considered s 19(5) of the Act, which provided: 'In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.'
Case: Vranic v Chief Executive Officer Centrelink [2004] FCA 1511
Outcome: cited
In Vranic v Chief Executive Officer Centrelink [2004] FCA 1511 , the applicant submitted that she had been denied procedural fairness because she was not legally represented at the hearing before the trial judge. Cooper J rejected this submission, stating at [8]: 'Procedural fairness in a civil proceedings (sic) does not require that legal representation be provided to a party at trial: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330; Stuart v Federal Commissioner of Taxation (1996) 96 ATC 4960 (FC) at 4964.'
Case: Athens v Randwick City Council [2005] NSWCA 317 ; (2005) 64 NSWLR 58
Outcome: followed
construing orders which are sought to be made on the subject of findings of contempt where later contraventions are alleged, it is permissible to have regard to any judgment given by the court pronouncing the orders and other relevant surrounding circumstances ( Athens v Randwick City Council [2005] NSWCA 317 ; (2005) 64 NSWLR 58).
Case: Smith v The New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: followed
is the first occasion on which I have had the benefit of representation of the respondent by counsel. Until now, effectively, the case has proceeded with the respondent acting for himself. The question of whether the Court should allow a limited reopening of the kind sought by the respondent has been discussed in a number of authorities. In Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 265 Brennan, Dawson, Toohey and Gaudron JJ dealt with the question where, as here, judgment has been given. I have made a finding of guilt on charge 2, but no orders have been entered. Their Honours pointed out that the power of the court to set aside or vary such a judgment, reflected in the analogue of O 35 r 7(1), was discretionary and existed up until the entry of judgment. Their Honours said that it was a power that was exercised having regard to the public interest in maintaining the finality of litigation and that if reasons for judgment had been given the power was only exercised if there was some matter calling for review. There may be, their Honours pointed out, more or less reluctance to exercise the power depending on whether there is an avenue of appeal. Their Honours approved the statement that where there had been judgment in a case, but the order had not been entered, the power would not ordinarily be exercised to permit a general reopening. However they made clear that that was a general statement only and, once the matter had been reopened, the nature and extent of the review had to depend upon the error or omission which led to the step being taken. In this case the error that is posited is that there was a factor overlooked by me in a construction of the order that might give rise to a reasonable doubt as to whether there had been a breach of it as I found. I am of the opinion that in the circumstances of the proceedings, the respondent has shown that there is a matter calling for review ( Smith v New South Wales Bar Association (1992) 176 CLR at 265 and Texas Company (Australasia) Limited v The Federal Commissioner of Taxation [1940] HCA 9 ; (1940) 63 CLR 382 at 457 per Starke J). Accordingly, in my view, it is appropriate for me to consider the argument now raised by the respondent for the purposes of reconsidering my finding, particularly as the respondent has sought to limit the basis of the review, notwithstanding that he maintains a position of wishing to challenge the factual findings that I have made in the event that an appeal is taken.
Case: Blair v Curran (1939) 62 CLR 464
Outcome: cited
On 7 February 2008 when the applicant filed its written outline of submissions for trial, it argued that the NCC was bound by res judicata and issue estoppel. The applicant referred to Blair v Curran (1939) 62 CLR 464 , which is, of course, the locus classicus of these doctrines.
Case: DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251 ; (2004) 51 ACSR 555
Outcome: cited
Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion in relation to matters of costs. In DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251 ; (2004) 51 ACSR 555 , Allsop J observed that the section conferred a broad and ample power which was not to be read down otherwise than in accordance with judicial principle.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
The principles that govern the award of indemnity costs are well settled: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. Such an order may be appropriate where it appears that the action was commenced or continued in circumstances where the applicant, properly advised, would have known that there was no chance of success. In such a case, an ulterior motive may be presumed. It is also within the discretion of a judge to depart from the ordinary rule of party and party costs where, for example, allegations of fraud have been made that are not sustained or where the conduct of the litigation has been such as to warrant a strong expression of disapproval. 18 In my view, there is no justification in this case for departing from the usual rule that costs be paid on a party and party basis. I accept the applicant's submissions in that regard. The doctrine of res judicata loomed large throughout and the applicant's decision to abandon issue estoppel did not bring about any delay or cause any party to incur additional expenditure. The res judicata point was certainly not hopeless.
Case: SZKJO v Minister for Immigration [2007] FMCA 1534
Outcome: affirmed
The nature of the appellant's visa application, the reasoning of the Tribunal, and the decision of the Federal Magistrates Court are set out in the judgment of the Federal Magistrate, which is available on the internet: SZKJO v Minister for Immigration [2007] FMCA 1534. 3 The appellant is a citizen of the People's Republic of China who arrived in Australia on 7 September 2006. The appellant claimed to have well-founded fear of persecution as a supporter of the Falun Gong. The appellant failed to attend the Tribunal hearing. The Tribunal sent the appellant an invitation to the Tribunal hearing. The Tribunal received no response, and the letter was not returned unclaimed. 4 The Tribunal made a decision pursuant to s 426A of the Migration Act 1958 (Cth). On the limited evidence before it, the Tribunal found that it could not be satisfied that the appellant was a Falun Gong practitioner in China, or that she currently practised in Australia. The Tribunal also could not be satisfied that the appellant was a genuine Falun Gong practitioner, or that she would seek to practise in the future. There was, accordingly, no persuasive evidence to satisfy the Tribunal that the appellant would face serious harm for a convention reason.