mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: "The Jordan Nicolov" [1990] 2 Lloyds Reps 11
Outcome: cited
However, even if O 6 r 11(3) alone is considered and operates according to its terms, there is a real issue in this case as to the last step the effect of the limitation provisions. In Martinus v Kidd [1982] HCA 64 ; (1982) 150 CLR 648 it was pointed out that no new cause of action comes into being against the personal representative of a deceased tortfeasor the existing cause of action survives. In that case, time runs for limitation purposes from accrual of the cause of action against the deceased (see per Gibbs CJ, Murphy and Wilson JJ at 652; Mason J at 659). The same principle must be applicable in relation to a cause of action that survives for the benefit of the personal representation of the deceased estate, absent any special provisions. That principle applies to an action by a trustee in bankruptcy to enforce a liability of the bankrupt ( Re Mansell; Ex parte Norton (1892) 66 LT 245). The same principle should apply in the case of the assignment of a cause of action. The original cause of action remains the foundation of the action (although not directly applicable, see " The Jordan Nicolov" [1990] 2 Lloyds Reps 11 per Hobhouse J at 19; Lefevre v White [1990] 1 Lloyd's Reps 569 per Popplewell J at 577 citing Post Office v Norwich Fire Insurance Ltd [1967] 2 QB 363 per Lord Denning at 373; cf per Jacobs J in Re Harry Simpson &amp; Company Pty Ltd and Companies Act 1936 [1964-5] NSWR 603 at 605; (1963) 81 WN (Pt 1) (NSW) 207 at 209. In the present case, the same causes of action have been pursued at all times.
Case: TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 
Outcome: followed
The decision of Finkelstein J in TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 may be seen as an example of the category of connection with property. There, the assignment of a cause of action for breach of confidential information, connected with or relating to rights of property that were assigned, was upheld (see particularly 158 FCR 444 at [79] [81]). However, that decision, and others since 1982, have been influenced by dicta of Lord Wilberforce and Lord Roskill in Trendtex [1982] AC 679 indicating another basis for exception from the general rule whether the assignee has a "genuine and substantial interest in the success of the ... litigation" (per Lord Wilberforce at 694D) or has a "genuine commercial interest in the enforcement of the claim of another" (per Lord Roskill at 703D). 33 Finkelstein J took the wider view in TS &amp; B Retail Systems Pty Ltd 158 FCR 444 and suggested that the High Court in Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386 had approved the effect of the statements by Lords Wilberforce and Roskill in Trendtex [1982] AC 679. The precise point that arises here did not arise in Campbell's Cash and Carry Pty Ltd [2006] HCA 41 ; 229 CLR 386. However, the reasoning of Gummow, Hayne and Crennan JJ at [68] [82] and Callinan and Heydon JJ at [258] [261] supports the opinion of Finkelstein J. In my opinion, the principle enunciated in Trendtex [1982] AC 679 can be taken to be established for Australia. It needs to be borne in mind that the statement in Poulton 89 CLR 540 was not the centre of controversy in that case.
Case: Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd [1989] FCA 275 ; (1989) 23 FCR 331
Outcome: cited
In my opinion, counsel for the defendants is correct in submitting that a Jones v Dunkel inference is also available because of the failure by Aon to call evidence from those involved in the negotiations for Macquarie Underwriting, particularly Stuart Coleman. The availability of a Jones v Dunkel inference in the case of a witness who is a third party can be a difficult issue. Macquarie and Aon are not in the "same camp" and Coleman is not under the control of Aon. In a sense, he was available to both parties. However, only the broker, Aon, had dealings with the potential insurer. The client was not, and would never be, directly in that loop. Between the parties here, it was natural for Aon rather than the defendants to call the evidence from those at Macquarie Underwriting who were involved in the dealings between Aon and Macquarie from the inception of business and in the subsequent management of the business including the proposed renewal. The failure to lead this evidence further buttresses the inference in favour of the defendants ( Payne v Parker [1976] 1 NSWLR 191 per Glass JA at 201 202; Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 133 ; (1991) 101 ALR 109 at 123; Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd [1989] FCA 275 ; (1989) 23 FCR 331 at 343 344; Ayoub v Euphoric Pty Ltd (2004) 12 BPR 22,735; [2004] NSWCA 457 per McClellan AJA at [62] [64]).
Case: Twenty-First Maylux Pty Ltd v Mercantile Mutual Insurance (Aust) Ltd [1990] VR 919 ; (1989) 92 ALR 661
Outcome: cited
Some basic propositions about s 21 should be borne in mind before approaching the detail of the issue. (1) "Knows" and "known" are strong words. They mean considerably more than "believes" or "suspects" or even "strongly suspects" (per McHugh, Kirby and Callinan JJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) [2003] HCA 25 ; (2003) 214 CLR 514 at 531; see also Commercial Union Assurance Co of Australia Ltd v Beard (1999) 47 NSWLR 735; (2000) 11 ANZ Ins Cas 61-458 per Davies A-JA at 75259). (2) The "matter" must be known to the insured. (3) On one alternative, the "matter" must also be known to be relevant to the decision of the particular insurer whether to accept risk, and, if so, on what terms in this case, on the basis put forward, by Macquarie Underwriting. As Gummow and Hayne JJ said in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [70] : "Under the Act, attention is shifted from the prudent insurer to the particular insurer." Although their Honours were in dissent in the result, this statement is obviously correct. (See also Twenty-First Maylux Pty Ltd v Mercantile Mutual Insurance (Aust) Ltd [1990] VR 919 ; (1989) 92 ALR 661.) (4) Relevance to the acceptance of the risk in the sense of the particular insurance hazard is required (McHugh, Kirby and Callinan JJ in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [32] ). (5) In the other alternative, it must be found that a reasonable person in the circumstances could be expected to know that the matter was relevant to the decision of the particular insurer. There is some debate about the meaning of the words "the circumstances". Although they plainly mean the circumstances of the particular case, the debate is said to be between subjective and extrinsic circumstances (see the discussion in Mann P, Annotated Insurance Contracts Act (4 th ed, Lawbook Co, 2003), para 21.10.8). (6) There is a debate as to whether an insured can "know" a matter by its agent cf McHugh, Kirby and Callinan JJ at [30] with Gummow and Hayne JJ in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [82] [89]. Pending further clarification by the High Court, the wider view should be taken following Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 per Powell JA at 610 611 (agreed with by Priestley JA and Clarke JA). (7) The obligation applies to renewal of a contract (s 11(9)(b)) ( Alexander Stenhouse Ltd v Austcan Investments Pty Ltd [1993] HCA 22 ; (1993) 112 ALR 353).
Case: Weldon v Neal (1887) 19 QBD 394
Outcome: cited
The first two steps are common to all causes of action. There has been much debate about amendment and limitation since Weldon v Neal (1887) 19 QBD 394. Many of the authorities were considered by the New South Wales Court of Appeal, presided over by Gleeson CJ, in relation to a rule similar to O 6 r 11(3) in Fernance v Nominal Defendant (1989) 17 NSWLR 710, particularly concerning the relationship between that rule and the New South Wales equivalent of the present O 13 r 2 of the Federal Court Rules . In this Court, see eg Zoneff v Elcom Credit Union Ltd [1990] ATPR 41-058 at 51,746 51,747. The introduction of s 59(2B) to the Federal Court of Australia Act 1976 (Cth) in 1994 and the consequent amendments to O 13 r 2 changed the landscape. Here, no argument was directed to those changes and their significance and, in particular, as to the interplay between O 6 r 11 and O 13 r 2. There was no discussion of the power to dispense with the Rules (O 1 r 8) (cf Karam v Australia and New Zealand Banking Group Ltd [2000] NSWSC 596 ; (2000) 34 ACSR 545).
Case: Zoneff v Elcom Credit Union Ltd [1990] ATPR 41-058
Outcome: cited
The first two steps are common to all causes of action. There has been much debate about amendment and limitation since Weldon v Neal (1887) 19 QBD 394. Many of the authorities were considered by the New South Wales Court of Appeal, presided over by Gleeson CJ, in relation to a rule similar to O 6 r 11(3) in Fernance v Nominal Defendant (1989) 17 NSWLR 710, particularly concerning the relationship between that rule and the New South Wales equivalent of the present O 13 r 2 of the Federal Court Rules . In this Court, see eg Zoneff v Elcom Credit Union Ltd [1990] ATPR 41-058 at 51,746 51,747. The introduction of s 59(2B) to the Federal Court of Australia Act 1976 (Cth) in 1994 and the consequent amendments to O 13 r 2 changed the landscape. Here, no argument was directed to those changes and their significance and, in particular, as to the interplay between O 6 r 11 and O 13 r 2. There was no discussion of the power to dispense with the Rules (O 1 r 8) (cf Karam v Australia and New Zealand Banking Group Ltd [2000] NSWSC 596 ; (2000) 34 ACSR 545).
Case: People Telecom Limited v Phatchat Pty Limited [2007] FCA 536
Outcome: related
On 11 April 2007 I decided an application for security for costs by the two cross-respondents in principle and gave reasons for the decision ( People Telecom Limited v Phatchat Pty Limited [2007] FCA 536). The last substantive paragraph was as follows: So, in my opinion, the task at the moment is to fix an amount which would be reasonable for those steps which should be taken to meet the s 45 and s 46 case, pending receipt of the evidence, which will be led by the applicant. It is at that point that both the cross-respondents, and myself, will have a better idea as to what is required for security. I will stand the matter over for further directions to 8 May 2007 at 9.15 am. If, in the meantime, that guidance helps you work something out, so much the better. 3 The amount of $30,000 was subsequently fixed for each cross-respondent. The point has now been reached where the next tranche of security is to be considered in relation to the cross-respondent Optus. After security was ordered and provided, there was a major change in the cross-claim based upon breach of Pt IV of the Trade Practices Act 1974 (Cth) the claim based upon s 46 has been abandoned, leaving a claim of breach of s 45 entirely based upon s 4D. Also, the cross-claimants' evidence has now been filed. 4 The orders for security were intended to provide security for the additional costs that would be incurred by reason of the preparation for the Pt IV cross-claim as such and that principle will govern this application, but with a rider. There are effectively three bases for the cross-claims against Optus breach of Pt IV of the Trade Practices Act 1974 (Cth), breach of the Privacy Act 1988 (Cth) and interference with contractual relations. There was no particular analysis of these bases on the earlier occasion the principal focus was upon the claims against the other cross-respondent. However, applying the same reasoning, the claim for interference with contractual relations would not attract an order for security. I doubt if the same can be said of the Privacy Act claim. On the face of it, it can be seen as both discrete and offensive (in the relevant sense). However, it arises out of circumstances otherwise in issue and, apart from a possible question of law, it is not suggested that it requires factual preparation not otherwise required.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: considered
do not apprehend any error on the part of the Federal Magistrates Court in failing to find that such procedural fairness as is required by s 424A was not given to the appellant. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 17, the High Court remarked of s 424(1)(a): The use of the future conditional tense (would be) rather than the indicative, strongly suggests that the operation of section 424(1)(a) is to be determined in advance and independently of the tribunal's particular reasoning on the facts of the case. What I have already observed in relation to s 424A is sufficient in the context of the present case to dispose of ground 2 of the notice of appeal. There was, in the circumstances, no obligation which arose under that section on the part of the Tribunal to give particulars in respect of the coincidence of lodgement of visa applications. There was no particularisation in the notice of appeal or oral submissions of what might otherwise constitute the adverse information. It is to be remembered, having regard to what was observed in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 18, that the Tribunal's subjective appraisals, thought processes, or determinations, do not constitute "information" for the purposes of s 424A.
Case: SZKLK v Minister for Immigration [2008] FCA 1125
Outcome: considered
was also advanced, in the course of oral submissions for the Appellant, the argument that the Federal Magistrates Court and it seems also the Tribunal, were in some way biased. There is not a scintilla of evidence which would support an apprehended bias challenge to the decision of the Federal Magistrates Court. In particular, the fact that that court gave its reasons for judgment upon the day on which the judicial review application was heard, does not support such a finding. As for the Tribunal proceeding, there was not developed before me any argument that the hearing before the Tribunal, in terms of the procedures adopted by the Tribunal, and having regard to its reasons, was such as would give rise to an apprehension of bias of the kind that I found present in SZKLK v Minister for Immigration [2008] FCA 1125.
Case: SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721
Outcome: cited
acknowledged, it is permissible, in my opinion, to draw an inference that, even prospectively, the adverse contingency, which generated on the part of the first Tribunal, the letter of 3 July 2007, did not form part of the second Tribunal's thinking. That inference, to me, seems to be open from para 102 of the Tribunal's reasons. I note that in SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 , Perram J adopted a similar approach: see especially para 16 of his Honour's reasons for judgment.
Case: Meni's Tailoring and Alterations Pty Ltd v Jeans West Corp Pty Ltd [2003] FCA 1108
Outcome: cited
Even though this is a "fairly modest threshold" (see Meni's Tailoring and Alterations Pty Ltd v Jeans West Corp Pty Ltd [2003] FCA 1108 at [4] ), and accepting for the purposes of argument the respondents' estimate of $300,000, I am positively satisfied the threshold has not been met. 8 On 31 August 2006, following applications to the Federal Court and creditors' meetings, the assets of the Ansett Group were pooled. In the course of his reasons granting approval of the proposed pooling Goldberg J said: "the pooling proposal by the Administrators is sensible and advantageous to most of the creditors from a practical point of view." (Administrators' Seventh Report to Creditors, 31 March 2007, p 22) 9 The significance of pooling for present purposes is that an award of costs against the applicant would be recoverable from all the assets of the Ansett Group, and not just the assets of the applicant. I turn therefore to the evidence as to the current assets of the Group.
Case: Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (No 2) (2001) 39 ACSR 622
Outcome: distinguished
Mr Campbell also referred to the decision of Austin J in Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (No 2) (2001) 39 ACSR 622. His Honour was there concerned with an application for costs against an administrator under a deed of company arrangement. The administrator was a party and in the substantive proceeding had been removed by order of his Honour on the basis of findings of impropriety and negligence in the conduct of the administration. Because the office of company administrator was comparatively new, and not the subject of any costs jurisprudence, his Honour reviewed a number of analogous situations. 20 Under the heading "Personal costs orders against administrators", Austin J discussed a number of scenarios commencing with that identified by the sub-heading "Where the company under a deed of company arrangement is a party to the proceedings, but the administrator is not, and the company is unsuccessful" ([24]-[35]). That of course is the hypothesis on which the present application is brought. 23 C resvale does not assist in the present case. The applicant company has not been shown to have insufficient funds to meet the costs of a successful opposing party.
Case: Wentworth v Wentworth [2000] NSWCA 350
Outcome: cited
His Honour said at [25]: "Clearly costs may be awarded against the company under administration, but the company may have insufficient funds to meet the costs of the successful party. In the normal case, the litigation will have been conducted on behalf of the company by the administrator. The question arises whether the court may order the administrator personally to pay the successful party's costs, although the administrator is not a party to the proceedings." His Honour then goes on to discuss Knight and points out that subsequent amendments to the New South Wales Supreme Court Rules have abolished some of the traditional categories of grounds for an order costs against non-parties referred to in that case: at [27], citing Wentworth v Wentworth [2000] NSWCA 350 at [162] . (There are no equivalent provisions in Order 28 of the Federal Court Rules .) He concludes at [32] that the New South Wales Rules would prevent a court in that State from awarding costs against an administrator who is not a party to the proceedings.
Case: Ragat Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175
Outcome: cited
In the event of the respondents' application being dismissed, the applicant seeks costs on an indemnity basis. One established ground for such an order is that an application has been commenced or continued in circumstances where the losing party (in the present case the respondents seeking an order for security for costs), properly advised, should have known that there was no chance of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, Ragat Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 at 177.
Case: Beach Petroleum NL v Johnson (1992) 7 ACSR 203
Outcome: cited
Thus the threshold requirement, which the respondents must establish, is that there is reason to believe that the applicant will be unable to pay the respondents' costs if they are successful. In the words of von Doussa J in Beach Petroleum NL v Johnson (1992) 7 ACSR 203 at 205: " ... the power of the court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant on service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs."
Case: Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: distinguished
Mr Campbell SC for the respondents referred to Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178. The High Court there held that the Supreme Court of Queensland had jurisdiction to award costs against non-parties, in that instance receivers and managers of insolvent companies which had brought unsuccessful proceedings. Mason CJ and Deane J at 191 pointed out that the availability of an order for security for costs at an early stage of litigation would be a "strong argument for refusing to exercise a discretion to order costs against a non-party". However, as their Honours went on to point out, that did not deny the existence of a jurisdiction to award costs against non-parties, as distinct from the possible exercise of discretion to refuse such an order. 21 His Honour said at [25]: "Clearly costs may be awarded against the company under administration, but the company may have insufficient funds to meet the costs of the successful party. In the normal case, the litigation will have been conducted on behalf of the company by the administrator. The question arises whether the court may order the administrator personally to pay the successful party's costs, although the administrator is not a party to the proceedings." His Honour then goes on to discuss Knight and points out that subsequent amendments to the New South Wales Supreme Court Rules have abolished some of the traditional categories of grounds for an order costs against non-parties referred to in that case: at [27], citing Wentworth v Wentworth [2000] NSWCA 350 at [162] . (There are no equivalent provisions in Order 28 of the Federal Court Rules .) He concludes at [32] that the New South Wales Rules would prevent a court in that State from awarding costs against an administrator who is not a party to the proceedings.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: cited
In the event of the respondents' application being dismissed, the applicant seeks costs on an indemnity basis. One established ground for such an order is that an application has been commenced or continued in circumstances where the losing party (in the present case the respondents seeking an order for security for costs), properly advised, should have known that there was no chance of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, Ragat Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 at 177.
Case: Re Travelodge Australia Ltd (1978) 21 ACTR 17
Outcome: cited
The application for security for costs must therefore be dismissed. It is not necessary therefore to say anything about the applicant's submissions as to the substantive merits of the respondents' case or the quantum of the amount of security sought. I would only say that there does seem to be force in the submission of Mr McGowan SC that the respondents are in a real sense the moving party since in their cross-claim they seek removal of the applicant's trade marks, which is something they would have to achieve anyway to obtain registration of their own marks. In substance, so it is said, the applicant is defending its property from attack: Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co [1923] 2 KB 166 at 177, Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175, Re Travelodge Australia Ltd (1978) 21 ACTR 17.