mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466
Outcome: considered
was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49]. In response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy. Next it was said that in Dawson , Goldberg J articulated the principle in terms of a threshold issue (at [49]), in respect of which the applicants carried the onus. Here there was no threshold issue because there was no onus on Dr Windsor. For that reason, any principle coming out of Manning and Dawson is not apt.
Case: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007)
Outcome: referred to
it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R &#167;90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.
Case: Re Martin &amp; Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 
Outcome: referred to
example of an abuse of process is where interlocutory orders, though not truly able to found an issue estoppel, may be capable of finally determining an issue of fact or law if 'it is reasonable to regard the earlier decision as a final determination of the issue' ( Re Martin &amp; Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 per Cooper J at 443) or the parties have conducted the litigation 'upon the footing that this part of the proceedings is to be then determined, to that extent, finally' ( Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 per Beaumont J (with whom Jenkinson and Lehane JJ agreed)) or 'a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination' ( Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [42]).
Case: Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149
Outcome: referred to
it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R &#167;90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.
Case: Sea Culture International Pty Limited v Scoles [1991] FCA 523 ; (1991) 32 FCR 275
Outcome: considered
power to stay or dismiss a proceeding under O 20 r 5 of the Rules for an abuse of process is not limited to those cases in which proceedings are commenced or maintained where there is a res judicata or issue estoppel in respect of them. French J (as he then was) put it this way in Sea Culture International Pty Limited v Scoles [1991] FCA 523 ; (1991) 32 FCR 275 at 279: An attempt to litigate in court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel. Nevertheless, the power to stay or dismiss must be 'very sparingly exercised and only in exceptional cases' (see Sea Culture International Pty Limited v Scoles at 279) and 'upon an examination of the relevant circumstances of the particular case before the Court' (see Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 at [70] per French J).
Case: Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 
Outcome: referred to
the power to stay or dismiss must be 'very sparingly exercised and only in exceptional cases' (see Sea Culture International Pty Limited v Scoles at 279) and 'upon an examination of the relevant circumstances of the particular case before the Court' (see Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 at [70] per French J).
Case: Spiteri v Nine Network Australia Pty Limited [2008] FCA 905
Outcome: referred to
indicated my approval of these observations of Rares J in Spiteri v Nine Network Australia Pty Limited [2008] FCA 905 at [7] .
Case: Walton v Gardiner (1993) 177 CLR 378
Outcome: referred to
was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49].
Case: Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101
Outcome: considered
this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.
Case: Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 
Outcome: referred to
orders, by nature, lack finality. It follows, therefore, that they are insufficient to create an issue estoppel (see Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 ; cited with approval in Bowes v Fehlberg &amp; Ors (No 2) [2001] TASSC 24 at [22] and by the New South Wales Court of Appeal in Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51. (iii) The facts and law the subject of the 2007 notice of motion were not conducted on a final basis
Case: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Outcome: cited
Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules , which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 ; Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 ; see generally on fixing of costs by courts, Dal Pont, Law of Costs (2003) at [15.14] ff and Quick on Costs at [6.20]. 23 It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films &amp; Television Pty Ltd at [8]. 24 It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films &amp; Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].
Case: Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Outcome: cited
Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules , which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 ; Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 ; see generally on fixing of costs by courts, Dal Pont, Law of Costs (2003) at [15.14] ff and Quick on Costs at [6.20].
Case: Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046
Outcome: cited
Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules , which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 ; Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 ; see generally on fixing of costs by courts, Dal Pont, Law of Costs (2003) at [15.14] ff and Quick on Costs at [6.20]. 23 It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films &amp; Television Pty Ltd at [8]. 24 It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films &amp; Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].
Case: Leary v Leary [1987] 1 All ER 261
Outcome: cited
It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films &amp; Television Pty Ltd at [8].
Case: Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788
Outcome: cited
It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films &amp; Television Pty Ltd at [8]. 24 It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films &amp; Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].
Case: Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812
Outcome: cited
It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films &amp; Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333
Outcome: applied
In Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 it was held, by majority, that s 20 of the Education Services for Overseas Students Act does not limit the circumstances in which s 116 of the Migration Act might operate where condition 8202 has not been complied with by a visa holder.