mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323
Outcome: referred to
It is a little surprising that after so many years of judges having made costs orders on various bases including that they be taxed on a "solicitor/client" basis it is still not clear what such an order means. The usual position in an action where costs are awarded in favour of a party is that they are taxed on a party and party basis. That is a reference to costs that have been reasonably and properly incurred and not the expense which has been actually incurred: A G Saddington Taxation of Costs between Parties (1919), cited in Milosevic v Government Insurance Office of New South Wales (1993) 31 NSWLR 323, 333. 11 When costs are ordered to be taxed as between solicitor and client, that usually means one of two different things. If the order is made in an equity case it means that the costs are to be paid on a common fund basis. But costs ordered to be paid on a common fund basis are not determined on a uniform basis. In Daniels Chancery Practice 8th ed at 1018 it was said that when dealing with the taxation of costs on a solicitor and client basis a distinction is to be drawn where the costs were payable out of a fund belonging to the other party, or out of a common fund in which the party entitled to costs had only limited interest, or where the costs were payable out of a fund belonging exclusively to the party himself. The author also noted that if it were intended that the party should be fully indemnified against all expenses the order should say so because an order that merely required the costs to be taxed as between solicitor and client would not achieve that result.
Case: O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591
Outcome: cited
In any event, since the decision of the High Court in Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 where it was held that the power to award costs permits a court to award costs against a non-party, the view has been taken that s 43 of the Federal Court of Australia Act 1976 (Cth) confers a power to award costs in favour of a non-party. Thus, in O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591 Spender J considered that s 43 authorised him to make a costs order in favour of an intervenor and in King v GIO Australia Holdings Ltd (2001) FCA 1773 Moore J said that s 43 enabled him to make a costs order in favour of a person served with a subpoena.
Case: Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681
Outcome: approved
The views of Sheppard J have not withstood the test of time. The most powerful attack came in Danieletto v Khera (1995) 35 NSWLR 684. In that case Bryson J rejected the idea that the entitlement of witnesses to be reimbursed for their costs and expenses could be established by reference to conflicting decisions from long ago affected by a Tudor statute long since repealed. He said (35 NSWLR at 688) that the matter should be approached as one of principle and, according to principle it "is a necessary incident of the exercise by the court of its subpoena power that the court should deal with the question of paying persons whose time and attention are involved in the exercise". That is, the court has an inherent jurisdiction to award in favour of a witness such costs as it thinks appropriate to compensate the witness for his time and expenses incurred in compliance with a subpoena. Thus it has been said, correctly in my opinion, that the rules that fix costs for witnesses "represent[s] but an aspect of the more comprehensive jurisdiction in respect of persons subjected to compulsion by the processes of the Court in proceedings to which they are not parties": Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, 690 per Barrett J.
Case: Reed v Gray [1952] Ch 337
Outcome: cited
Costs are sometimes ordered on an indemnity basis. There is some support for the view that this is equivalent to a solicitor and own client taxation: see eg Giles v Randall [1915] 1 KB 295, 298; Reed v Gray [1952] Ch 337; Gibbs v Gibbs [1952] P 332, 347. On the other hand there are cases, some of which are my own, where an indemnity cost order was made for the purpose of ensuring that the beneficiary of the order was not out of pocket by one cent. An example is when a party is joined so that there is a contradictor.
Case: Smith v Smith [1906] VLR 78
Outcome: cited
More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457, 458. The purpose of the order is to allow "as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit": Smith v Smith [1906] VLR 78, 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially "a party and party taxation on a more generous scale". See also Giles v Randall [1915] 1 KB 290, 295. In practice costs taxed on this basis will be much the same as those taxed under O 27 r 4A.
Case: Bridges Financial Services Pty Ltd v Brown [2008] FCA 992
Outcome: cited
than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland.
Case: Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500
Outcome: cited
than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland.
Case: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Outcome: cited
ground of bias was not raised in the Federal Magistrates Court and, as it is a factual question, is not appropriate to be raised for the first time on appeal. In any event, it is apparent that the claim of bias is based merely upon the terms of the decision which, as counsel for the respondents submits, is extremely difficult to establish ( SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). Although the third ground was not spelled out in advance of the hearing as it should have been, the appellant referred to s 424A of the Act, linking it in a general way with a finding by the Tribunal. As the issue appears to have been raised in some fashion in the Federal Magistrates Court, it is appropriate to consider it on this appeal. The appellant's claim for protection was based upon his being a devout and active member of the underground Catholic Church in China. In support of that claim, he had produced a certificate of baptism and a certificate purporting to be from a Bishop concerning his potential and actual persecution. The relevant part of the Tribunal decision is as follows: 'I also reject the applicant's 'Certificate' signed by Bishop Yin provided that refers to restriction of freedom of belief, disruption of the mass by the PSB and that the applicant and Missionary Lin have been chased by the PSB and that Missionary Lin had been arrested. I reject the Certificate on the basis of the Country information, which I accept, which indicates that it is very easy to obtain false documents in Fujian. I also reject the applicant's comments in response concerning the special stamp placed on this document as authenticating the document. In this regard, I accept the independent evidence that it is not difficult to prepare false documents in Fuzhou (CX643). As a result of these findings, I find further that the applicant's claims regarding his role in the Catholic Church and the adverse attention shown to him as a result are inconsistent with the independent country information, and I reject them. Following on from my findings, I also find that the applicant will not face any restrictions on the practise of his religion if he were to return to the PRC. Accordingly, I find that the applicant does not have a well-founded fear of persecution based on these claims.'
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: applied
for the respondent Minister accepts that the information in relation to forgery was part of the reason why the Tribunal affirmed the decision under review and therefore accepts that, prima facie, s 424A(1) of the Act was engaged. He accepts that no relevant notice was given to the appellant. It is submitted, however, that the information fell within the exception provided for by s 424A(3)(a). I accept the submission by counsel for the respondent Minister that the proper construction of that subsection has been settled by a series of Full Court decisions such that the information in question here is within that subsection and so not caught by the section ( VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 , (2004) 80 ALD 559; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). The appeal is dismissed. The appellant is to pay the costs of the first respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 13 October 2006 The appellant appeared in person Counsel for the First Respondent: Mr JAC Potts Solicitor for the First Respondent: Clayton Utz Dates of Hearing: 11 and 15 August 2006 Date of Judgment: 13 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1327.html
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Notoriously the winds of change have been blowing through China and the extent to which they may have relevantly affected a claim such as that made by the appellant might well have been discussed in the kinds of international publications habitually resorted to by the Tribunal and referred to generally as "country information". It is true, as Mr Zipser argued for the appellant, that, not having set out what the evidence was to support his finding against the appellant, it would be open to the Court to infer that there was no such evidence at all and consequent jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. However, since I have the relevant part of the transcript it does not seem to me to be fair, in the circumstances of this particular case, to draw that inference (which in general, in the interests of transparency, courts should not be slow to draw).
Case: Project Blue Sky Inc &amp; Ors v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
A question arose as to whether, nevertheless, an order or injunction might go to the Tribunal member to cause him to comply with his obligation under s 430(1)(d) of the Migration Act 1958 (Cth) to "refer to the evidence or ... other material on which the findings of fact were based". In my opinion, in a proper case, the Court would have jurisdiction to issue such an order and ought not be slow to do so and, but for the matter to which I am about to come, I would have done so in this case: see Project Blue Sky Inc &amp; Ors v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, [100]. 10 Mr Smith, counsel for the Minister, points out that the Tribunal member in fact also considered the matter on the assumption that the appellant had been detained as he alleged in the second and third sentences of the quoted paragraph. 11 Mr Zipser complained of the second sentence that the Tribunal could not have used the language there set out unless it had misconceived what was involved in a claim of persecution for reasons of political opinion. Clearly enough, a public demonstration against a government-run enterprise followed by arrest by the security police, would have to be regarded as the infliction of harm for reasons of the subject person's political opinion. However, again, exercising the degree of charity to which a Tribunal member is on the authorities entitled, I think such a view of the Tribunal's words is, in their context, to misread them. It is true that the sentence, read alone, would bear the imputation and the consequent criticism identified by counsel for the appellant. But, reading the sentence in the context, particularly of the next sentence and of the paragraph that follows, I think it is fair to say that the Tribunal was not denying the potential Convention significance of demonstrating against a state employer but was asserting that, in his view, and on the other facts that he found, there was no implication arising out of what had happened to the appellant, for his future safety. There had been no indication that the appellant would wish further to agitate the matter of the cold store conditions if he returned to China, nor was there any other basis upon which he might so behave as to attract the attention of the authorities. The Tribunal member, it seems to me, was really saying that if the appellant had been detained as he claimed, there was no well-founded fear that any future harm to him might come from that fact or the underlying reason for its having occurred.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: referred to
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 is authority for the proposition that a proper exercise of the discretion requires that relief should not issue in such circumstances. So much, with respect, also appears to me to be plain common sense and I regret that the appellant must fail here. 14 It will be apparent that issues were debated in this Court that were not debated before the learned Federal Magistrate but they do not require the Court to find any error on the part of the court below. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 4 September 2007 Counsel for the Appellant: Mr B Zipser Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1333.html
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
The discretion to confirm the Scheme pursuant to s 194 is at large and is only confined by the purposes to be served by it in the context of the Act as a whole and Pt 9 in particular ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39 40) . The role of the Court is plainly not limited to supervising the various procedural steps to be taken, nor by any opinion that APRA cares to express. An important indication of the proper approach is the first object of the Act (s 3(1)): "to protect the interests of the owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry". ( Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at [3] ). Further, Parliament has indicated the importance of the role of the Court in Pt 9 , by identifying it as one of six principal means of effecting the objects of the Act (s 3(2)).
Case: Re Application of Commonwealth Life Ltd [2003] FCA 637
Outcome: cited
It is submitted that the approval of APRA is an important consideration. That may be accepted in the general way in the usual case approval of, or lack of objection by, APRA would be a necessary, but not sufficient, condition for confirmation. The statute expressly gives APRA a role in relation to Pt 9 (eg, ss 191(1) , 191 (2a), 192 and 193(3)), in addition to its other supervisory responsibilities. That role has naturally been referred to in many of the authorities (eg Re Application of Commonwealth Life Ltd [2003] FCA 637 at [13] ; Re MLC Lifetime Co Ltd and MLC Ltd (No 2) [2006] FCA 1367 at [14] ). I shall return to the position of APRA in another respect later.
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37
Outcome: cited
The discretion to confirm the Scheme pursuant to s 194 is at large and is only confined by the purposes to be served by it in the context of the Act as a whole and Pt 9 in particular ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39 40) . The role of the Court is plainly not limited to supervising the various procedural steps to be taken, nor by any opinion that APRA cares to express. An important indication of the proper approach is the first object of the Act (s 3(1)): "to protect the interests of the owners and prospective owners of life insurance policies in a manner consistent with the continued development of a viable, competitive and innovative life insurance industry". ( Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at [3] ). Further, Parliament has indicated the importance of the role of the Court in Pt 9 , by identifying it as one of six principal means of effecting the objects of the Act (s 3(2)).
Case: Re MLC Lifetime Co Ltd and MLC Ltd (No 2) [2006] FCA 1367
Outcome: cited
It is submitted that the approval of APRA is an important consideration. That may be accepted in the general way in the usual case approval of, or lack of objection by, APRA would be a necessary, but not sufficient, condition for confirmation. The statute expressly gives APRA a role in relation to Pt 9 (eg, ss 191(1) , 191 (2a), 192 and 193(3)), in addition to its other supervisory responsibilities. That role has naturally been referred to in many of the authorities (eg Re Application of Commonwealth Life Ltd [2003] FCA 637 at [13] ; Re MLC Lifetime Co Ltd and MLC Ltd (No 2) [2006] FCA 1367 at [14] ). I shall return to the position of APRA in another respect later.