mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: KM &amp; A Chadwick Pty Ltd v Yeung [1995] FCA 354
Outcome: referred to
When applying these principles, the Court must balance the need for the expeditious conduct of litigation, particularly in a court committed to a case management system, and the "the strong reluctance of courts to prevent litigants having a proper opportunity to present their cases": KM &amp; A Chadwick Pty Ltd v Yeung [1995] FCA 354 per Tamberlin J. Ms Wu's motion must also be considered in light of the other powers of the Court to sanction non-compliance, such as the use of costs orders. 52 The history of this matter is troubling. The first and second respondents have been in default numerous times in the course of this proceeding. They filed their first lists of discoverable documents on 18 February 2004, over three months after the original deadline and over a month after orders by consent that they be filed by 15 January 2004. Moreover, these lists were filed only after Ms Wu brought two motions for compliance. Subsequent to this, Ms Wu has been required to take extraordinary steps to secure inspection of documents. 53 In addition, it is clear that Ms Wu has been frustrated by other action, or inaction, by these respondents, even if not amounting to non-compliance with court orders. The application for substituted service, the initial failure to seek to have a subpoena issued to Mr Guss, the failure of the respondents personally to attend mediation, the resignation of Barry Armitage from office in Avin, and the frequent changes in legal representation are matters that have undoubtedly caused Ms Wu vexation and have made the conduct of litigation more difficult than it would otherwise have been. Having regard to their conduct, I find that the first and second respondents have failed to defend the proceeding with due diligence. They are therefore in default for the purposes of O 35A r 2(2)(h) of the Rules.
Case: Australian Finance Group Ltd v Accent Financial Group Pty Ltd [2005] FCA 66
Outcome: referred to
Despite this conclusion and the unsatisfactory history of the proceeding, I would not at this stage make orders precisely in the terms of the present motion. Instead, pursuant to O 35A r 3(2)(e), I would order that judgment for $334,000 and interest thereon against the first and second respondents be given under O 35A r 3(2)(c) if the first and second respondents do not comply with the costs order that I propose to make (see below). I would not order that judgment be entered without more because, following the return of the subpoena directed to Mr Guss, there remains no continuing and unexplained default on the respondents' part. If Barry Armitage's evidence is accepted, there is nothing more the respondents can do to facilitate inspection of documents. Although Mr Guss did not produce all of the documents the subject of the subpoena, Barry Armitage has affirmed that the remaining documents remain in Mr Guss' custody. Ultimately, the credibility (or lack thereof) of Barry Armitage's claims regarding these and like matters will be an issue for trial: see Australian Finance Group Ltd v Accent Financial Group Pty Ltd [2005] FCA 66 at [33] per Nicholson J. Whether he is believed or not is likely to have other consequences for this litigation. 55 I note too that there may be circumstances that partly explain the delays. These circumstances include the ill health of Barry Armitage and of a family member and the disturbance caused by changes in legal representation. Moreover, although the respondents have needed repeated prompting by Ms Wu's solicitor, they have filed their defence, various affidavits responding to Ms Wu's claims and lists of discoverable documents. They have mostly participated in court hearings and they were represented at the mediation by their solicitor. Barry Armitage ultimately took steps to have a subpoena issued to Mr Guss, in order that Ms Wu have access to the first and second respondents' discovered documents. 56 In these circumstances, any prejudice caused to Ms Wu can, at this stage, be met by an appropriate costs order, subject to an entitlement to enter judgment in the event of non-compliance with such an order. Plainly enough, this is not to condone the delay occasioned by Avin and Barry Armitage; and this is not an invitation to them to continue to litigate this matter in the unsatisfactory manner they have thus far done. As indicated below, it is appropriate that they pay Ms Wu's costs of the motion on an indemnity basis; and, since they are in fact in default, that there be orders of the kind contemplated by O 35A r 3(2)(e). I also note that there is again apparently no solicitor on the record. The repeated last-minute retainer of solicitor and counsel to is mischievous since it militates against the efficient conduct of the litigation. The evidence of Mr Liberogiannis about the Armitages' failure to cooperate with their legal advisers is concerning. Nothing in these reasons would preclude Ms Wu from bringing fresh notices of motions for summary judgment upon further breaches of court orders.
Case: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Outcome: followed
The respondents contended that Ms Wu's application should fail because she failed to provide legally admissible evidence of all the facts necessary to substantiate her entitlement to the relief claimed. Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment: see Australian Securities Commission v Macleod (1994) 54 FCR 309 at 312-313 per Drummond J. Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6] --[7] per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J. Having read the statement of claim, I find that these conditions are satisfied. Accordingly, the motion does not fail because of an insufficiency of evidence showing entitlement to relief claimed.
Case: Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856
Outcome: followed
The respondents contended that Ms Wu's application should fail because she failed to provide legally admissible evidence of all the facts necessary to substantiate her entitlement to the relief claimed. Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment: see Australian Securities Commission v Macleod (1994) 54 FCR 309 at 312-313 per Drummond J. Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6] --[7] per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J. Having read the statement of claim, I find that these conditions are satisfied. Accordingly, the motion does not fail because of an insufficiency of evidence showing entitlement to relief claimed.
Case: Australian Competition and Consumer Commission v Albert [2005] FCA 1311
Outcome: followed
The respondents contended that Ms Wu's application should fail because she failed to provide legally admissible evidence of all the facts necessary to substantiate her entitlement to the relief claimed. Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment: see Australian Securities Commission v Macleod (1994) 54 FCR 309 at 312-313 per Drummond J. Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6] --[7] per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J. Having read the statement of claim, I find that these conditions are satisfied. Accordingly, the motion does not fail because of an insufficiency of evidence showing entitlement to relief claimed.
Case: Deisel Spa v Hwang [2005] FCA 1619
Outcome: followed
The respondents contended that Ms Wu's application should fail because she failed to provide legally admissible evidence of all the facts necessary to substantiate her entitlement to the relief claimed. Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment: see Australian Securities Commission v Macleod (1994) 54 FCR 309 at 312-313 per Drummond J. Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6] --[7] per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J. Having read the statement of claim, I find that these conditions are satisfied. Accordingly, the motion does not fail because of an insufficiency of evidence showing entitlement to relief claimed.
Case: East Grace Corporation v Xing (No 2) [2005] FCA 1266
Outcome: cited
recently discussed the principles applicable to preliminary discovery under O 15 r 6 in East Grace Corporation v Xing (No 2) [2005] FCA 1266. It is not necessary to repeat here that discussion and the citation of authorities there set out. For the purposes of O 15A r 6 and O 15A r 3, I am satisfied that: There is reasonable cause to believe that Austal has, or may have, the right to obtain relief in this Court from Messrs Merrigan and Thurlow for one or more of the following causes of action: (i) breach of confidence and infringement of copyright in the case of Mr Merrigan; (ii) infringement of copyright in the case of Mr Thurlow and possible accessorial liability in relation to breach of confidence. The applicant has made what, in the circumstances, are all reasonable enquiries. The term 'reasonable' in this context falls to be considered having regard to the degree of urgency necessary to act upon what is, on the face of it, a potentially serious breach of an obligation of confidentiality and unauthorised reproduction of a sensitive internal report of Austal. Wider enquiries are unlikely to elicit information relevant to the decision that Austal has to make as the necessary documentation is likely to be held by the respective respondents. No offer of disclosure has been made in response to the requests which have been sent. The offer of further investigation by Mr Clifford in the email sent to Mr Rothwell did not promise the kind of disclosure necessary for Austal to make the decision which it wants to make in relation to the institution of proceedings. There is reasonable cause to believe that Mr Merrigan and Mr Thurlow are likely to have in their possession documents, including email communications and copies of the Austal Report, relevant to the question whether Austal has a right to obtain relief against them. In the case of the Incat respondents, there are a number of companies some of which may have had no involvement at all in Mr Thurlow's apparent conduct in sending a copy of the Austal Report to Master Ferries. An order for discovery against the Incat respondents is likely to assist Austal in ascertaining against which, if any of them, it may have a cause of action. As to those of the respondents which are not involved, such respondents would have knowledge of facts as to their non-involvement which will assist the process of ascertainment of the relevant respondents which is contemplated by O 15A r 3. Discovery against Incat will also serve to assist Austal in ascertaining whether Mr Merrigan or some other person had breached confidentiality or infringed its copyright.
Case: Calderbank v Calderbank [1976] Fam 93
Outcome: applied
appellation "Calderbank offer" has its origin in the decision of the English Court of Appeal in Calderbank v Calderbank [1976] Fam 93 at 106. In essence, a Calderbank offer is one which is made in a proceeding before judgment on the basis of it being without prejudice save as to costs and in which an offer for settlement or resolution of the proceeding is made. The right is reserved to refer to the offer if any issue arises as to costs once judgment is delivered. A court can take the offer into account in determining what costs order should be made notwithstanding that the payment into court procedure provided in the court's rules has not been followed. If the party to whom the offer is made does not obtain a more favourable result than the offer made and it is established that in the circumstances of the case that party ought to have accepted the offer, then costs will be awarded on the same basis as if there had been a payment into Court prior to judgment and judgment for a lesser amount had been obtained.
Case: Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union [2004] FCA 1600
Outcome: considered
refusal or rejection of a Calderbank offer, of itself, does not automatically mean, or give rise to a presumption, that the Court should make an order for costs on either a party/party basis or (depending on the circumstances) an indemnity basis where the result is less favourable to the offeree than the offer. It must be established that it was unreasonable in all the circumstances for the offeree to reject the offer : Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union [2004] FCA 1600 at [6] ; Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at 440. That question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159
Outcome: considered
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192
Outcome: considered
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Vasram v AMP Life Limited [2002] FCA 1286
Outcome: considered
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212
Outcome: considered
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755
Outcome: considered
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)