mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194
Outcome: followed
In the absence of a hearing on the merits, Finkelstein J has concluded that " it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287. His Honour also there referred to the following summary of propositions provided by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201: (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial.... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... Some reservation has been expressed as to whether each party should bear its own costs in the circumstances contemplated by Finkletstein J " except in special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47] per Gillard J. Concurrence is, however, expressed with respect to the general approach as set forth by both Finkelstein and Hill JJ.
Case: Australian Securities Commission v Somerville (1994) 51 FCR 38
Outcome: followed
The second difficulty confronting the Applicant's Motion for discovery was the fact that it expressly sought the discovery of documents post-dating the decision made in November 2007. An order for discovery may, of course, be made in judicial review proceedings: Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45. But how the discovery of documents post-dating the decision the subject of judicial review may have been relevant to the November 2007 decision-making process remained largely unexplained. Also unexplained was why such an order would have been " necessary ": Federal Court Rules , O 15, r 15. And an applicant for discovery bears the onus of satisfying the Court that an order is " necessary ": Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426.
Case: Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214
Outcome: considered
In the absence of a hearing on the merits, Finkelstein J has concluded that " it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287. His Honour also there referred to the following summary of propositions provided by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201: (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial.... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... Some reservation has been expressed as to whether each party should bear its own costs in the circumstances contemplated by Finkletstein J " except in special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47] per Gillard J. Concurrence is, however, expressed with respect to the general approach as set forth by both Finkelstein and Hill JJ.
Case: Clark v ING Life Ltd [2007] FCA 1960
Outcome: followed
Where leave is sought to discontinue proceedings pursuant to O 22, r 2(1)(d), the question as to who should bear the costs falls to be determined under s 43(2) of the Federal Court of Australia Act : Clark v ING Life Ltd [2007] FCA 1960 at [16] [17] per Rares J. Where such leave is sought, it is not the function of the Court to make a prediction as to the outcome. 21 Even though there has been no hearing in respect of the Amended Application seeking review of the s 16 notice issued in November 2007, the hearing of the Applicant's Motion seeking discovery had proceeded virtually to the conclusion of submissions on behalf of the Applicant. Agreement as to the manner in which the proceedings were to be resolved also necessarily carried with it the conclusion that a decision with respect to the Motion became unnecessary. A view had been formed, however, that had it been necessary to resolve the Motion , the Applicant would in all likelihood have been unsuccessful.
Case: Dutton v Republic of South Africa [1999] FCA 1016 , 92 FCR 575
Outcome: cited
Counsel for the Applicant contended that the purported revocation of the November 2007 notice was beyond power. Counsel contended that there was simply no power to revoke or withdraw a notice issued under s 16: Dutton v Republic of South Africa [1999] FCA 1016 at [13] , [1999] FCA 1016 ; 92 FCR 575 at 578 per Wilcox, Whitlam and Moore JJ. However that contention may have been resolved, Counsel accepted that there would be no utility in pursuing the present proceedings if no reliance was to be placed by the Minister upon that November 2007 notice. 11 Finland, it may be noted, also has not placed reliance upon that notice in the Local Court and the Local Court file has been marked " no jurisdiction ". 12 Given the revocation, or at least the purported revocation, in April 2008, it was not surprising that Counsel for the Respondent Minister gave the assurance which was sought, namely that no reliance was to be placed upon the November 2007 notice. There then emerged some common ground, namely that there was no utility in further pursuing the proceedings and that the assurance was to be noted by the Court. 18 One consideration relied upon in concluding that there should be no order for costs is the fact that there was an agreement reached in advance of any final hearing that the proceedings should not further be pursued. From the Applicant's perspective, the assurance offered by the Respondent Minister that there would be no reliance placed upon the November 2007 notice was " as good as a win "; from the Minister's perspective, he maintained that the notice had been validly issued and also validly revoked, but that there was little point in ultimately resolving either contention. How the decision of the Full Court in Dutton was to be addressed remained unexplained. From whichever perspective the proceedings were approached, the result was the same -- there was agreement that there was no utility in further pursuing the litigation.
Case: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 101 ALD 12
Outcome: cited
The August 2006 and April 2007 notices have been the subject of other proceedings. At first instance both notices were declared to be invalid: Tervonen v Minister for Justice and Customs [2007] FCA 1684 , 98 ALD 589. On appeal, the order declaring invalid the April 2007 notice was varied and the notice was held not to be a valid notice only with respect to specified offences: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 101 ALD 12. An application for special leave to appeal from the decision of the Full Court has apparently been filed with the High Court.
Case: O'Neill v Mann [2000] FCA 1680
Outcome: followed
The power to order costs, conferred by s 43 of the Federal Court of Australia Act 1976 (Cth), is a discretionary power. The discretion conferred is absolute and unfettered, except that it must be exercised judicially and not arbitrarily or capriciously: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213. Order 22, r 3 of the Federal Court Rules does not make express provision for costs where proceedings have been discontinued with the leave of the Court pursuant to O 22, r 2(1)(d): Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where the leave of the Court is required, the Court has the discretion to impose conditions including as to costs: [2005] FCA 997 at [45] , [2005] FCA 997 ; 146 FCR 37 at 49. There is an " underlying policy " in the Rules that a discontinuing party should be liable to pay costs ( O'Neill v Mann [2000] FCA 1680 at [13] per Finn J) but that policy has not " hardened into a usual rule ": Smith v Airservices Australia [2005] FCA 997 at [44] , [2005] FCA 997 ; 146 FCR 37 at 49. The " underlying policy " nevertheless suggests a " starting point " for any consideration of the awarding of costs.
Case: Smith v Airservices Australia [2005] FCA 997 , 146 FCR 37
Outcome: followed
The power to order costs, conferred by s 43 of the Federal Court of Australia Act 1976 (Cth), is a discretionary power. The discretion conferred is absolute and unfettered, except that it must be exercised judicially and not arbitrarily or capriciously: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213. Order 22, r 3 of the Federal Court Rules does not make express provision for costs where proceedings have been discontinued with the leave of the Court pursuant to O 22, r 2(1)(d): Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where the leave of the Court is required, the Court has the discretion to impose conditions including as to costs: [2005] FCA 997 at [45] , [2005] FCA 997 ; 146 FCR 37 at 49. There is an " underlying policy " in the Rules that a discontinuing party should be liable to pay costs ( O'Neill v Mann [2000] FCA 1680 at [13] per Finn J) but that policy has not " hardened into a usual rule ": Smith v Airservices Australia [2005] FCA 997 at [44] , [2005] FCA 997 ; 146 FCR 37 at 49. The " underlying policy " nevertheless suggests a " starting point " for any consideration of the awarding of costs.
Case: Tervonen v Minister for Justice and Customs [2007] FCA 1684 , 98 ALD 589
Outcome: cited
The August 2006 and April 2007 notices have been the subject of other proceedings. At first instance both notices were declared to be invalid: Tervonen v Minister for Justice and Customs [2007] FCA 1684 , 98 ALD 589. On appeal, the order declaring invalid the April 2007 notice was varied and the notice was held not to be a valid notice only with respect to specified offences: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 101 ALD 12. An application for special leave to appeal from the decision of the Full Court has apparently been filed with the High Court.
Case: Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426
Outcome: followed
The second difficulty confronting the Applicant's Motion for discovery was the fact that it expressly sought the discovery of documents post-dating the decision made in November 2007. An order for discovery may, of course, be made in judicial review proceedings: Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45. But how the discovery of documents post-dating the decision the subject of judicial review may have been relevant to the November 2007 decision-making process remained largely unexplained. Also unexplained was why such an order would have been " necessary ": Federal Court Rules , O 15, r 15. And an applicant for discovery bears the onus of satisfying the Court that an order is " necessary ": Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213
Outcome: followed
The power to order costs, conferred by s 43 of the Federal Court of Australia Act 1976 (Cth), is a discretionary power. The discretion conferred is absolute and unfettered, except that it must be exercised judicially and not arbitrarily or capriciously: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213. Order 22, r 3 of the Federal Court Rules does not make express provision for costs where proceedings have been discontinued with the leave of the Court pursuant to O 22, r 2(1)(d): Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where the leave of the Court is required, the Court has the discretion to impose conditions including as to costs: [2005] FCA 997 at [45] , [2005] FCA 997 ; 146 FCR 37 at 49. There is an " underlying policy " in the Rules that a discontinuing party should be liable to pay costs ( O'Neill v Mann [2000] FCA 1680 at [13] per Finn J) but that policy has not " hardened into a usual rule ": Smith v Airservices Australia [2005] FCA 997 at [44] , [2005] FCA 997 ; 146 FCR 37 at 49. The " underlying policy " nevertheless suggests a " starting point " for any consideration of the awarding of costs.
Case: Re First Netcom Pty Ltd (2000) 35 ACSR 615
Outcome: cited
discretion under s 440A(2) is to be exercised having regard to the well known observations of McPherson J (Davies and Pincus JJ concurring) in Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 (see also Re First Netcom Pty Ltd (2000) 35 ACSR 615 , per Santow J) concerning the closely related question of whether the creditors could hope to get more by way of payment of their debts from administration rather than liquidation and whether there is persuasive evidence of assets which if realised under one form of administration rather than the other would produce a larger or accelerated dividend to the creditors. The hope must however be a real and not remote possibility, unclouded by cascading contingencies all of which must fall in before an asset might become available to the creditors as a group. In Creevey , the Court discounted a contended claim as a possible asset available to creditors. In that case the foreshadowed claim had not been formulated in any concrete way. The claim in this case has been formulated but has already been found to be unmeritorious after a lengthy trial. A liquidator of Citrus could form a view about the merits of the proceeding and conduct discussions with Mr Tracy as to his willingness to fund the liquidator in the conduct of an appeal and any subsequent retrial of the proceeding.
Case: Hill v Repatriation Commission [2003] AATA 114
Outcome: discussed
The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act.
Case: Hill v Repatriation Commission (2004) 39 AAR 103
Outcome: discussed
The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act.
Case: Hill v Repatriation Commission [2006] AATA 925
Outcome: discussed
The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act.
Case: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88
Outcome: discussed
The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act.
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: referred to
The contention of Mr Hill, in essence that the conclusion of the AAT was so unreasonable that no reasonable decision-maker could have reached it, can also be expressed as saying that the evidence accepted by the AAT could not as a matter of law support a conclusion that Mr Hill is permanently able to work for periods adding up to more than eight hours per week. See Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. If the evidence can reasonably support the AAT's conclusion, then there is no error of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439. I have put the proposition in the affirmative notwithstanding the words of cl 5(2)(b) of the Determination because the AAT made a positive finding to that effect in [29] of its reasons.
Case: Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439
Outcome: referred to
The contention of Mr Hill, in essence that the conclusion of the AAT was so unreasonable that no reasonable decision-maker could have reached it, can also be expressed as saying that the evidence accepted by the AAT could not as a matter of law support a conclusion that Mr Hill is permanently able to work for periods adding up to more than eight hours per week. See Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. If the evidence can reasonably support the AAT's conclusion, then there is no error of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439. I have put the proposition in the affirmative notwithstanding the words of cl 5(2)(b) of the Determination because the AAT made a positive finding to that effect in [29] of its reasons.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: referred to
The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647.
Case: Commonwealth of Australia v Smith (1989) 18 ALD 224
Outcome: referred to
The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647.