mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660
Outcome: cited
It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Nonetheless, it is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119
Outcome: cited
As I indicated at the beginning of these reasons, punishment is not a permissible purpose in the exercise of my discretion to deny a successful party his or her costs in whole or in part. I am particularly conscious of that in this matter. I am also conscious that, in apportioning costs to reflect consequences occasioned by a successful defendant's disentitling conduct, I can only proceed by way of impression having regard to how the litigation itself unfolded and of the conduct of the parties in it. There can be no "mathematical precision" in the resultant allocation of costs: cf Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 at [13] . 18 In the circumstances I consider that appropriate costs orders in the Rawley matter would be that the applicants (i) pay 50 per cent of the second respondent's costs of the application; and (ii) pay Mr Bell's costs. 19 While in no way casting doubt on the seriousness to Mr Chehade of his claim, it had a much smaller evidentiary compass than the Rawley matter and occupied a relatively small part of the time taken in the joint proceedings.
Case: Seven Network (Operations) Ltd v TCN Channel 9 Pty Ltd (2005) 146 SCR 183
Outcome: cited
matter that received limited attention in the submissions of the parties was the relevance, if any, of post-contractual conduct in determining what the terms of the contract are when they are not in writing. If they are in writing the common law of Australia is comparatively clear: see the observations of Heydon JA in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [26] and more recently the judgment of the High Court in Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57 ; (2008) 251 ALR 322 per Gummow, Hayne &amp; Kiefel JJ at [36] and [163]. The post-contractual conduct is irrelevant. However the position is less clear in relation to contracts which are not in writing. This question was comparatively recently addressed by Finkelstein J as a member of a Full Court in Seven Network (Operations) Ltd v TCN Channel 9 Pty Ltd [2005] FCAFC 144 ; (2005) 146 FCR 183 at [83] . His Honour said: As things presently stand Anglo-Australian law does not allow reference to what the parties to a contract said and did before or after the contract as an aid to construction: James Miller &amp; Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 ; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 ; Secured Income Real Estate (Australia) Limited v St Martins Investments Proprietary Limited (1979) 144 CLR 597 ; FAI Traders Insurance Company Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343. The fear is that this approach could result in a contract having different meanings on different days. The rule does not, however, prevent the reception of pre-contract conduct (White v Australian and New Zealand Theatres Limited [1943] HCA 6 ; (1943) 67 CLR 266 ) or post-contract conduct (Australian Estates Ltd v Palmer (unreported, New South Wales Court of Appeal, Kirby P, Samuels and Meagher JJA, 22 December 1989 )) to identify the things with which the contract does deal.
Case: Esco Corporation v PAC Mining Pty Ltd [2008] FCA 640
Outcome: related
When I delivered my reasons for judgment in this matter on 12 May 2008, I directed that the parties consult with a view to agreeing upon Short Minutes of Order giving effect to my reasons, and that, if the parties could not agree, then competing Short Minutes of Order should be sent to my chambers with brief reasons: see Esco Corporation v PAC Mining Pty Ltd [2008] FCA 640. 2 I have had the benefit of both written and oral submissions by the parties in relation to the appropriate form of orders. From these submissions, several matters have arisen which require determination. 3 The first point of dispute between the parties concerns the definition of the term "Infringing Articles", which is used in both competing Short Minutes of Order. The definition proposed by the applicants was that "'Infringing Articles' means the Hensley System, the PAC Mining System, the CQMS System and the CQMS Lower Wing System (and any other wear assembly that contains the essential integers of claim 1 of Jones III)." The definition proposed by the respondents was that "'Infringing Articles' means the Hensley System, the PAC Mining System, the CQMS System and the CQMS Lower Wing System". My reasons for judgment of 12 May 2008 refer to and explain the meaning of most of these "systems".
Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Outcome: cited
There is also a dispute in relation to costs. The respondents concede that they are bound to pay the costs of the applicants in relation to the cross-claim, on which the applicants were successful. In relation to the applicants' claim of infringement, the Court found there was infringement, but in so doing only accepted one of the applicants' three arguments on construction. The general rule is that costs should follow the event, although the Court has a discretion to award costs on an issue-by-issue basis where a litigant has succeeded only in a portion of its claim: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. I think this principle should be applied in the present case, so that the applicants receive their costs with some allowance made for the fact that they succeeded only in respect of one of the three claims in dispute. Accordingly, I consider that the respondents should pay 80% of the applicants' costs.
Case: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
Outcome: cited
There is also a dispute in relation to costs. The respondents concede that they are bound to pay the costs of the applicants in relation to the cross-claim, on which the applicants were successful. In relation to the applicants' claim of infringement, the Court found there was infringement, but in so doing only accepted one of the applicants' three arguments on construction. The general rule is that costs should follow the event, although the Court has a discretion to award costs on an issue-by-issue basis where a litigant has succeeded only in a portion of its claim: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748 ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. I think this principle should be applied in the present case, so that the applicants receive their costs with some allowance made for the fact that they succeeded only in respect of one of the three claims in dispute. Accordingly, I consider that the respondents should pay 80% of the applicants' costs.
Case: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Outcome: cited
Finally, the respondents seek a stay of certain orders pending determination of an appeal from my judgment of 12 May 2008. As a condition of this stay, the respondents are willing to give undertakings that they shall keep accurate records of sales, shall not destroy any records in relation to their business, shall not dispose of or encumber any assets otherwise than in the ordinary course of business, and shall execute any application for leave to appeal and appeal with due expedition: cf Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 67. In addition, the respondents undertake to pay to the applicants such amount as the Court thinks fit as compensation for any damage that the applicants may suffer as a consequence of a stay being granted, and to provide, if required by the Court, a bank guarantee in the sum of $500,000 as security for this undertaking as to compensation. 18 Relevant to the application for a stay, the respondents adduced evidence from Mr Meyers to the effect that the respondents employ about 400 people in Australia. He says that the manufacture and supply of wear assemblies is an important part of the respondents' business and a significant revenue contributor. Some of the relevant assemblies, he notes, have been supplied by the respondents for more than ten years, and that supply currently goes to every major coal producer in Australia. Mr Meyers says that if a stay is not granted, customers using the respondents' dragline and excavator lips will not be able to source alternative wear assemblies to fit their existing buckets and lips; the delay in supply of wear assemblies will have consequences for the respondents' customers' capacity to meet their contractual obligations; the employment of the 10% of the respondents' employees who are involved in the manufacture and sale of the respondents' wear assemblies may be jeopardised; and the respondents' relationship with customers will be damaged. There was some cross-examination of Mr Meyers, but it did not materially diminish the content or effect of his evidence. 19 Under O 52 r 17 of the Federal Court Rules , the Court has the power to stay the execution of a judgment pending an appeal from that judgment. There is a prima facie assumption that the judgment the subject of the appeal is correct and that the Court should not deprive a person of the fruits of victory by granting a stay. It is not necessary for the party seeking the stay to show that special or exceptional circumstances exist, but the Court must be satisfied that a sound reason has been presented to warrant exercise of the discretion: see Powerflex 67 FCR at 66; Re Middle Harbour Investments Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976).
Case: Re Middle Harbour Investments Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976)
Outcome: cited
Under O 52 r 17 of the Federal Court Rules , the Court has the power to stay the execution of a judgment pending an appeal from that judgment. There is a prima facie assumption that the judgment the subject of the appeal is correct and that the Court should not deprive a person of the fruits of victory by granting a stay. It is not necessary for the party seeking the stay to show that special or exceptional circumstances exist, but the Court must be satisfied that a sound reason has been presented to warrant exercise of the discretion: see Powerflex 67 FCR at 66; Re Middle Harbour Investments Ltd (In liq) (unreported, New South Wales Court of Appeal, 15 December 1976).
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
To establish that special reasons exist, the applicant must show that this case can be distinguished from the usual course: Jess v Scott (1986) 12 FCR 187.
Case: Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894
Outcome: cited
In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 , Finkelstein J had regard to: (a) the length of the delay; (b) whether the respondent will suffer prejudice if time was extended; (c) the nature of the injustice to the applicant if denied the right to appeal. Another relevant factor is the explanation for the delay. Further, in considering the second and third factors mentioned above, it may be necessary to have regard to the merits of the appeal. If the applicant has little or no prospect of success, then that would be a reason for refusing an extension. If, on the other hand, the appeal raises a matter of some importance or appears to have some prospect of success, that would be a reason absent any prejudice to the respondent for extending time. 22 The judgment in this matter was given ex tempore. The applicant was present when judgment was delivered. He was aware on the date on which the order was made that his application for review had been dismissed. No evidence has been adduced as to when he changed his address or when the judgment was collected from the Federal Magistrates Court. Whilst the length of the delay is not great, the explanation for the delay is not satisfactory. 23 The Minister can point to no prejudice if an extension of time were granted.
Case: Dynasty Pty Ltd v Coombs (1995) 59 FCR 122
Outcome: applied
Conduct which is burdensome, harsh and wrongful is oppressive: Scottish Meyer Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 at 342. Such conduct is capable of being unfairly prejudicial to a member within the meaning of s 232(e): Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 135D per Spender, O'Loughlin and Branson JJ. Their Honours went on to apply what Lord Wilberforce said in Ebrahami [1973] AC at 379 which I have set out above on the question of the existence of quasi partnership ( Dynasty 59 FCR at 138 B-D). They took the view the act of removing a quasi partner as a director could be significant evidence of oppression ( Dynasty 59 FCR at 138 E-F; see also Smith Martis Cork &amp; Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136 at 149-150 [105]-[107] per Wilcox, Marshall and Jacobson JJ).
Case: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
Outcome: applied
In his seminal speech in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 380B Lord Wilberforce pointed out that a company however small and however domestic is a company and not a partnership or even a quasi partnership. He said, however, that it was through the just and equitable clause (now s 461(1)(k)) that obligations, common to partnership relations, may come in. He continued by pointing out that the just and equitable ground is available if the member can point to and prove some special underlying obligation of his fellow member or members in good faith, or confidence, that so long as the business continues he shall be entitled to management participation, an obligation so basic that, if broken, the conclusion must be that the association must be dissolved ( Ebrahimi [1973] AC at 380E). 234 Lord Wilberforce said that the principles on which the member may do this had been worked out by the Courts in partnership situations. Earlier in his speech, he pointed out that the just and equitable ground enables the Court to subject the exercise of legal rights to equitable considerations. He said that these considerations were of a personal character between one individual and another which may make it unjust or inequitable, to insist on legal rights or to exercise them in a particular way. Lord Wilberforce said that it would be impossible and wholly undesirable to define the circumstances in which those considerations may arise and pointed to the fact that merely because a company was a small one or a private company was not enough to bring those into play. 235 If the association were purely a commercial one in which it could safely be said that the basis of the association was adequately and exhaustively laid down in the company's constitution, equitable considerations need have no part ( Ebrahimi [1973] AC at 379 C-E). But, his Lordship pointed out that: ( Ebrahimi [1973] AC at 379 E-H) 'The superimposition of equitable considerations requires something more, which typically may include one, or probably more, of the following elements: (i) an association formed or continued on the basis of a personal relationship, involving mutual confidence - this element will often be found where a pre-existing partnership has been converted into a limited company; (ii) an agreement, or understanding, that all, or some (for there may be 'sleeping' members), of the shareholders shall participate in the conduct of the business; (iii) restriction upon the transfer of the members' interest in the company - so that if confidence is lost, or one member is removed from management, he cannot take out his stake and go elsewhere. It is these, and analogous, factors which may bring into play the just and equitable clause, and they do so directly, through the force of the words themselves.'
Case: In re A Company [1999] UKHL 24 ; [1999] 1 WLR 1092
Outcome: considered
In In re A Company [1999] UKHL 24 ; [1999] 1 WLR 1092 at 1098D-1102B Lord Hoffmann discussed the interplay of the just and equitable concept in the analogue of s 461(1)(k) and 'unfair' in the analogue of s 232(e). He pointed out that although fairness was a notion that could be applied to all kinds of activities, its content would depend upon the context in which it was being used ( In re A Company [1999] 1 WLR at 1098F). Of course, there will be decisions in any association, such as a partnership or company, which one or more members find to be prejudicial or discriminatory against them. But the emphasis in establishing a ground for an order under s 232(e) is that the conduct be unfairly prejudicial or discriminatory or be oppressive ( Wayde v New South Wales Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 467-468 per Mason ACJ, Wilson, Deane and Dawson JJ). Thus, the bona fide and proper exercise of a power under a company's constitution for the purpose for which it was conferred is unlikely to be found to establish unfair prejudice or unfair discrimination against a member under s 232(e) ( Wayde 180 CLR at 467).
Case: Re DG Brims &amp; Sons Pty Ltd (1995) 16 ACSR 559
Outcome: cited
In Re DG Brims &amp; Sons Pty Limited (1995) 16 ACSR 559 at 591-592, Byrne J in the Supreme Court of Queensland said the use of company funds in defending the proceedings on behalf of the majority shareholders was unfair and infringed the basal principle that the powers and the funds of a company may be used only for the purposes of the company. He said that where the essential dispute was between the shareholders, company funds should not have been used to defend the majority. Here, the essential dispute was between the shareholders and the funds of BGR should not have been employed to pay for a defence of the majority. 259 For all these reasons, I am of opinion that the conduct of BGR's affairs is contrary to the interests of its members as a whole and is oppressive to, unfairly prejudicial to or unfairly discriminatory against Food Improvers. 260 The plaintiffs filed a motion on 31 March 2006 which sought, among other things, an order restraining Cordato Partners from acting for any of BGR and its subsidiaries. It was not sought to restrain Cordato Partners from acting on behalf of Triad or Cordato Partners Services. The hearing of that motion was concurrent with the trial. Cordato Partners is not a party to the proceedings, and was not made a party to the motion. No relief is sought in the third further amended application or the further amended statement of claim against Cordato Partners.
Case: Scottish Meyer Cooperative Wholesale Society Ltd v Meyer [1959] AC 324
Outcome: cited
Conduct which is burdensome, harsh and wrongful is oppressive: Scottish Meyer Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 at 342. Such conduct is capable of being unfairly prejudicial to a member within the meaning of s 232(e): Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 135D per Spender, O'Loughlin and Branson JJ. Their Honours went on to apply what Lord Wilberforce said in Ebrahami [1973] AC at 379 which I have set out above on the question of the existence of quasi partnership ( Dynasty 59 FCR at 138 B-D). They took the view the act of removing a quasi partner as a director could be significant evidence of oppression ( Dynasty 59 FCR at 138 E-F; see also Smith Martis Cork &amp; Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136 at 149-150 [105]-[107] per Wilcox, Marshall and Jacobson JJ).
Case: Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 WLR 413
Outcome: applied
In Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 WLR 413 at 417H-418A the Privy Council held that where a person has been led to believe, even in the absence of any express assurance, that he or she would participate in the management of a company, he or she would in any event be entitled to a seat on the board so long as he or she continued to hold his shares. Their Lordships said that although no specific undertakings may have been given, an obligation could be implied or inferred from the conduct of the parties to allow the person to participate in the management and to be a director '...unless by withdrawal of his support or for some other good reason a change in management and control became necessary.'
Case: Wayde v New South Wales Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459
Outcome: cited
In In re A Company [1999] UKHL 24 ; [1999] 1 WLR 1092 at 1098D-1102B Lord Hoffmann discussed the interplay of the just and equitable concept in the analogue of s 461(1)(k) and 'unfair' in the analogue of s 232(e). He pointed out that although fairness was a notion that could be applied to all kinds of activities, its content would depend upon the context in which it was being used ( In re A Company [1999] 1 WLR at 1098F). Of course, there will be decisions in any association, such as a partnership or company, which one or more members find to be prejudicial or discriminatory against them. But the emphasis in establishing a ground for an order under s 232(e) is that the conduct be unfairly prejudicial or discriminatory or be oppressive ( Wayde v New South Wales Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459 at 467-468 per Mason ACJ, Wilson, Deane and Dawson JJ). Thus, the bona fide and proper exercise of a power under a company's constitution for the purpose for which it was conferred is unlikely to be found to establish unfair prejudice or unfair discrimination against a member under s 232(e) ( Wayde 180 CLR at 467).
Case: Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71
Outcome: referred to
principles have been applied in many cases. Not surprisingly the Respondents place reliance on cases, such as BWK Elders (Australia) Pty Ltd v Westgate Wool Co Pty Ltd (No 6) [2002] FCA 807 and Intercoal Ltd v Tarong Energy Corporation Ltd [2006] FCA 85 in which the Court granted applications to transfer; and the Applicants drew attention to cases such as Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 71 and Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 in which transfer applications were refused. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. They included the questions of whether pleadings had closed and whether the witnesses to be called at trial were known at the time at which the application was made.