mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Cummings v Lewis (1993) 41 FCR 559
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Forster v Farquhar (1893) 1 QB 564
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172
Outcome: cited
Court's discretion to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, except that it must be exercised judicially. The usual order as to costs is that a successful party will have its costs paid on a party and party basis by the unsuccessful party: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. As the passage from Cretazzo indicates, the mere fact that a substantially successful applicant fails on particular issues of fact or law along the way may not afford an adequate ground for depriving that applicant of some or all of its costs. On the other hand, it lies within the Court's discretion to make a costs order that reflects the degree of success attained: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235 [11] and 236 [15]. Depending on the circumstances, it may be an appropriate exercise of the Court's discretion to deprive a party of its costs in respect of an issue which it lost at trial: Cummings v Lewis (1993) 41 FCR 559 at 599-604; and Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [3] . Alternatively, the Court can order a successful party to pay some costs in respect of unsuccessful aspects of the case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136; Forster v Farquhar (1893) 1 QB 564; and Inn Leisure Industries Pty Ltd v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172.
Case: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Outcome: cited
many cases, these principles can only be applied sensibly by taking a broad view of the results of the case and the issues that were litigated. An allocation of costs in a case of mixed results can rarely if ever be done with mathematical precision: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272 per Gummow, French and Hill JJ. Taking a broad and overall view of the outcome of this case, I consider that both AWB and the Commonwealth achieved a substantial measure of success. I cannot agree with AWB's submission that, in material respects, it was the successful litigant. The Commonwealth succeeded on a number of very important issues. It established that privilege did not attach to numerous documents that are likely to be material to the issues being investigated by the Commission. AWB did not merely fail 'along the way' to prove particular issues of fact and law which, in the end, did not prevent it achieving substantial success; rather, AWB lost some of the most substantial issues that were litigated. Those issues involved more than half of the hearing time occupied by this case. In all the circumstances, I consider that the just and appropriate order is that there be no order as to the costs of the proceeding. The result will be that AWB and the Commonwealth must each bear its own costs. I do not consider that there is any substance in the criticisms that AWB directed towards the Commonwealth. The Commonwealth was entitled to put AWB to the proof of its privilege claims. Nor do I agree with AWB's assertion that the description of the documents in AWB's lists was generally sufficient to enable the Commonwealth to form a view about the provenance of each document and the grounds upon which privilege was claimed. AWB also sought the costs of its notice of motion dated 19 June 2006 and the first respondent's notice of motion dated 24 July 2006. I have concluded that there should be no order as to the costs of these notices of motion.
Case: Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661
Outcome: cited
459S(2) of the Corporations Act provides that leave is not to be granted unless the Court is satisfied that the ground relied upon is material to proving that the company is solvent. The primary judge concluded that a challenge to the debt will be material to proving that the company is solvent if the company is able to demonstrate that if the debt does not exist, then the company will be solvent. That approach is conventionally understood as the "narrow approach" to s 459S of the Corporations Act . In adopting that approach, the primary judge applied the reasoning of Spigelman CJ in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 674 and particularly at [56]. The observations of the Chief Justice are consistent with the views expressed by Perram J in Grant Thornton Services (NSW) Pty Limited v St George Wholesale Distributors Pty Limited [2008] FCA 1777 at [19] to [22].
Case: Grant Thornton Services (NSW) Pty Limited v St. George Wholesale Distributors Pty Limited [2008] FCA 1777
Outcome: cited
459S(2) of the Corporations Act provides that leave is not to be granted unless the Court is satisfied that the ground relied upon is material to proving that the company is solvent. The primary judge concluded that a challenge to the debt will be material to proving that the company is solvent if the company is able to demonstrate that if the debt does not exist, then the company will be solvent. That approach is conventionally understood as the "narrow approach" to s 459S of the Corporations Act . In adopting that approach, the primary judge applied the reasoning of Spigelman CJ in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 674 and particularly at [56]. The observations of the Chief Justice are consistent with the views expressed by Perram J in Grant Thornton Services (NSW) Pty Limited v St George Wholesale Distributors Pty Limited [2008] FCA 1777 at [19] to [22].
Case: Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376
Outcome: cited
primary judge also relied upon the authorities of HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 and particularly at [53] (per French J) and Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] to [45] (per Besanko J). Having considered the reasons of the primary judge in relation to the construction and operation of s 459S of the Corporations Act , I am satisfied that there is no error reflected in his Honour's approach to the authorities and his Honour's approach to the construction and application of s 459S of the Corporations Act .
Case: Deputy Commissioner of Taxation v Neo Rock Pty Ltd [2009] FCA 129
Outcome: cited
addition to the question of construction of the relevant provision of the Act, his Honour also turned to some of the affidavit material and the facts reflected in those affidavits. At [10] of the primary judge's reasons in Deputy Commissioner of Taxation v Neo Rock Pty Ltd [2009] FCA 129 on 12 February 2009, the primary judge said this: The evidence lead on behalf of Neo Rock on the application is noteworthy for its absence of reference to the overall financial position of that company. There is no evidence which touches upon the assets and liabilities of the company generally, its profit and loss, its balance sheet, or its solvency, either having regard to the debt as it presently stands (which has its origins in that which supported the statutory demand) or otherwise howsoever. The focus of the affidavit material which has been read is on dealings as between Neo Rock and the Australian Taxation Office (the ATO) in the context of an as yet unresolved audit of that company's taxation affairs by the ATO. The primary judge noted that the company had engaged a chartered accountant, Mr Vicca, to assist the company with the task of bringing its business activity statements up to date. Mr Vicca expressed certain opinions about the balance debt due to the Deputy Commissioner. The Deputy Commissioner in response filed affidavit material which suggested that the present indebtedness of the company to the Deputy Commissioner and therefore payable as a debt due to the Commonwealth was $24,132.01. The company contests aspects of that assertion and did so before the primary judge. The primary judge also noted at [13] that the company had failed to lodge income tax returns for the financial years ending 30 June 2005, 2006, 2007 and 2008. The primary judge concluded at [14]: It is not a satisfactory state of affairs for a company, faced with an application for its winding up in respect of a debt which it has not contested in the way provided for when a statutory demand was issued, to seek an indefinite adjournment of a winding up application on the strength of what is, in substance, an assertion unfocussed on the subject of proof of the solvency of the company.
Case: Autodesk Inc. and Another v Dyason and Others (No. 2) [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: followed
considering the substance of the applicant's claims, it is to be observed that ordinarily the Court cannot revisit its findings. In Wentworth v Woollahra Municipal Council and Others [1982] HCA 41 ; (1982) 149 CLR 672 at 684 Mason ACJ, Wilson and Brennan JJ said:- ...the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. Similarly, Mason CJ in Autodesk Inc. and Another v Dyason and Others (No. 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 303 said that the power of the Court to reconsider judgments would not be exercised for the purpose of ' re-agitating arguments already considered by the Court ', nor ' because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put '. While such authority refers to a basis for reviewing an earlier decision where the Court, still possessing jurisdiction in a proceeding, later considers its decision to be erroneous, this Court considers that the principle referred to in Autodesk and McMullin applies generally and should guide this Court in the present circumstances. Is forfeiture dependent upon conviction or commission of a criminal offence?
Case: Coco v R (1994) 179 CLR 427
Outcome: referred to
applicant relies upon the decision of the Full Court of the Supreme Court of South Australia in Dimella Constructions Pty. Ltd v Stocker and Stocker (1976) 14 SASR 215 in which the Court at 221-222 considered the meaning of the word 'contravention'. Additionally, the applicant submits that the principle of interpretation that Parliament is not taken to deprive persons of property rights without expressing its intention in unmistakable and unambiguous terms applies: see Coco v R (1994) 179 CLR 427 at 437-438. The applicant also relied upon the rule of construction that dispossession of a valuable property right without compensation cannot be imputed to Parliament unless expressed in unequivocal terms incapable of any other meaning: see Coco v R at 437-438. The applicant submits that the word 'contravention' used in s 261A of the Migration Act should be construed narrowly and confined, in accordance with the Second Reading speech of the Act inserting s 261A into the Migration Act , to those cases where forfeiture of the vessel occurs as a penalty in relation to 'people smuggling' criminal offences and not in respect of those instances where persons seek asylum.
Case: Customs and Excise Commissioners v. Air Canada [1991] 2 QB 446
Outcome: referred to
answer to the applicant's submissions lie the words used in s 261A of the Migration Act . The words providing for the forfeiture are clear and unequivocal. The principles relied upon by the Commonwealth concerning forfeiture of property are not in contest, and the concept is clearly recognised: see for example Customs and Excise Commissioners v. Air Canada [1991] 2 QB 446. In that decision the Court upheld the validity of a forfeiture of an aircraft which was involved in the carriage of cannabis resin, even though the owners of the aircraft were unaware of that fact. Whilst the law providing for forfeiture may appear harsh, that is the necessary consequence of its operation regarding property rights. In the present circumstances forfeiture occurred when the vessel was used or involved in a ' contravention of this Act '. Such contravention occurred by the bringing in or coming into Australia of one or more persons who were or became unlawful non-citizens, contrary to s 42 of the Migration Act . The text of s 261A of the Migration Act is unambiguous. In these circumstances the authorities relied upon by the applicant have no scope for application. The Refugee Convention
Case: Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785
Outcome: referred to
meaning of the word 'contravention' is critical for the present proceedings. The word has been defined in cases other than Dimella to mean ' a failure to obey a statutory command...by doing something that a statute says must not be done ': see Re Centennial Coal Co Ltd (2006) 226 ALR 341 at 346 per Barrett J; ' an infringement or violation of a rule or standard or norm ': see Re Venice Nominees at 242 per Miles CJ; '" infringe (law); (of things) conflict with"' per Owen J in Elkington v Vockbay Pty Ltd; Vockbay Pty Ltd v Elkington (1993) 10 ACSR 785 at 803; and ' an act or omission which is blameworthy and may lead to civil or criminal consequences ' per Young J in NRMA Ltd v Gould and Others (1995) 18 ACSR 290 at 293. The word has been defined in various UK statues as ' failure to comply ': see, for example, ss 5(1) and 37(1) Misuse of Drugs Act 1971 (UK); s 53(1) Food and Safety Act 1990 (UK).
Case: In Re A (children) (conjoined twins: surgical separation) [2000] EWCA Civ 254 ; [2001] 2 WLR 480
Outcome: referred to
common law defence of necessity, from which the defence of sudden or extraordinary emergency in s 10.3 of the Criminal Code has its origins, has been seen as a defence both of excuse and of justification: see, for example, R v Loughnan [1981] VR 443 which proceeded upon the assumption that such defence was an excuse and In Re A (children) (conjoined twins: surgical separation) [2000] EWCA Civ 254 ; [2001] 2 WLR 480 in which Lord Brooke treated the defence of necessity as a justification. Unfortunately the history of the defence provides little firm guidance so resort must be had to the Criminal Code itself to discern whether one will still contravene an offence provision even if a defence is available.