mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
The applicant contended that the discharge application was bound to fail. It was submitted that the respondents had no prospects of establishing the exceptional circumstances required by the authorities and that, accordingly, the notice of motion was instituted without reasonable cause. The applicant also pointed out that the respondents had placed heavy but misguided reliance upon the decisions in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139, and did not address themselves to the relevant authorities, which included Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178, Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 at 751 and Dudzinski v Centrelink [2003] FCA 308 at [11] .
Case: Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745
Outcome: cited
The applicant contended that the discharge application was bound to fail. It was submitted that the respondents had no prospects of establishing the exceptional circumstances required by the authorities and that, accordingly, the notice of motion was instituted without reasonable cause. The applicant also pointed out that the respondents had placed heavy but misguided reliance upon the decisions in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139, and did not address themselves to the relevant authorities, which included Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178, Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 at 751 and Dudzinski v Centrelink [2003] FCA 308 at [11] .
Case: Dudzinski v Centrelink [2003] FCA 308
Outcome: cited
The applicant contended that the discharge application was bound to fail. It was submitted that the respondents had no prospects of establishing the exceptional circumstances required by the authorities and that, accordingly, the notice of motion was instituted without reasonable cause. The applicant also pointed out that the respondents had placed heavy but misguided reliance upon the decisions in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139, and did not address themselves to the relevant authorities, which included Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178, Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 at 751 and Dudzinski v Centrelink [2003] FCA 308 at [11] .
Case: Standish v University of Tasmania (1989) 28 IR 129
Outcome: cited
My reasons for judgment of 26 May 2006 explain why I rejected the application to discharge the interlocutory injunction. In my opinion, the application had very limited prospects of success in the absence of evidence establishing new facts or changed circumstances. There is, however, a distinction between an application that proves unsuccessful and an application or argument that is so misconceived that it can be characterised as unreasonable or vexatious. An order for costs might be made under s 824 in the latter case but not the former: see Standish v University of Tasmania (1989) 28 IR 129 at 138-139 per Lockhart J; and Foxcroft v Ink Group Pty Ltd (1994) 57 IR 65 at 69. This case comes very close to the line, but in the end I am not persuaded that the motion was vexatious or unreasonable within the meaning of s 842(1), or that the pursuit of the motion involved unreasonable acts or omissions by the respondents that inflicted costs on the applicant in such a way as to attract s 824(2).
Case: Foxcroft v Ink Group Pty Ltd (1994) 57 IR 65
Outcome: cited
My reasons for judgment of 26 May 2006 explain why I rejected the application to discharge the interlocutory injunction. In my opinion, the application had very limited prospects of success in the absence of evidence establishing new facts or changed circumstances. There is, however, a distinction between an application that proves unsuccessful and an application or argument that is so misconceived that it can be characterised as unreasonable or vexatious. An order for costs might be made under s 824 in the latter case but not the former: see Standish v University of Tasmania (1989) 28 IR 129 at 138-139 per Lockhart J; and Foxcroft v Ink Group Pty Ltd (1994) 57 IR 65 at 69. This case comes very close to the line, but in the end I am not persuaded that the motion was vexatious or unreasonable within the meaning of s 842(1), or that the pursuit of the motion involved unreasonable acts or omissions by the respondents that inflicted costs on the applicant in such a way as to attract s 824(2).
Case: Abigroup Ltd v Abignano (1992) 112 ALR 497
Outcome: cited
In my view there is power to make the order sought. It has always been accepted that a court retains jurisdiction after final judgment to deal with matters involved in or arising in the course of the operation of the court's order. If the need to deal with an order is foreseen the order usually reserves liberty to apply. At any rate a court has inherent power to deal with such matters. That a court retains the ability to deal with matters arising out of its orders does not permit it to grant substantive relief of a kind not originally sought in the proceeding or which is substantially different from that given by the final order: Phillips v Walsh (1990) 20 NSWLR 206, 209. Indeed, reservation of liberty to apply is usually confined to "questions of machinery which may arise from the implementation of a court's orders": Abigroup Ltd v Abignano (1992) 112 ALR 497, 509. But it is not limited to matters of machinery. A court can make a variety of orders provided what is involved does not undermine the finality of the orders already made: Penrice v Williams (1883) 23 Ch D 353.
Case: Penrice v Williams (1883) 23 Ch D 353
Outcome: cited
In my view there is power to make the order sought. It has always been accepted that a court retains jurisdiction after final judgment to deal with matters involved in or arising in the course of the operation of the court's order. If the need to deal with an order is foreseen the order usually reserves liberty to apply. At any rate a court has inherent power to deal with such matters. That a court retains the ability to deal with matters arising out of its orders does not permit it to grant substantive relief of a kind not originally sought in the proceeding or which is substantially different from that given by the final order: Phillips v Walsh (1990) 20 NSWLR 206, 209. Indeed, reservation of liberty to apply is usually confined to "questions of machinery which may arise from the implementation of a court's orders": Abigroup Ltd v Abignano (1992) 112 ALR 497, 509. But it is not limited to matters of machinery. A court can make a variety of orders provided what is involved does not undermine the finality of the orders already made: Penrice v Williams (1883) 23 Ch D 353.
Case: Phillips v Walsh (1990) 20 NSWLR 206
Outcome: cited
In my view there is power to make the order sought. It has always been accepted that a court retains jurisdiction after final judgment to deal with matters involved in or arising in the course of the operation of the court's order. If the need to deal with an order is foreseen the order usually reserves liberty to apply. At any rate a court has inherent power to deal with such matters. That a court retains the ability to deal with matters arising out of its orders does not permit it to grant substantive relief of a kind not originally sought in the proceeding or which is substantially different from that given by the final order: Phillips v Walsh (1990) 20 NSWLR 206, 209. Indeed, reservation of liberty to apply is usually confined to "questions of machinery which may arise from the implementation of a court's orders": Abigroup Ltd v Abignano (1992) 112 ALR 497, 509. But it is not limited to matters of machinery. A court can make a variety of orders provided what is involved does not undermine the finality of the orders already made: Penrice v Williams (1883) 23 Ch D 353.
Case: Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365
Outcome: followed
Section 84(5) of the Native Title Act provides that the Federal Court may join any person as a party to proceedings under the Act if it is satisfied that 'the person's interests may be affected by a determination in the proceedings'. NTS is no stranger to applications made under this section. In Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 , Tamberlin J considered an application for the New South Wales Aboriginal Land Council to withdraw as a party from a native title proceeding and for NTS to be joined as a party. In December 2001 the status of the Land Council as a Native Title Representative Body was withdrawn at its own request. The Aboriginal and Torres Strait Islander Commission decided to grant funds to NTS to assist in certain activities including carrying out the functions of a representative body as set out in s 203B of the Native Title Act .
Case: Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150
Outcome: referred to
In Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150 the applicants failed in their compensation claim for two independent reasons both of which indicate the evidentiary hurdles that must be overcome by an applicant in such a case. Sackville J expressed those reasons as follows (at [789]): &#8226; 'First, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed at the relevant times the laws and customs of the Western Desert bloc as pleaded in the Points of Claim . &#8226; Secondly, I am not satisfied that any laws and customs relating to rights and interests in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert bloc, within the meaning of s 223(1) of the NTA.' 21 Given the lack of progress with the present application, there is no reasonable prospect of such evidence ever being produced. Under the circumstances, I accept that NTS has done everything possible to ensure that those who might have an interest in the claim have been consulted about the present application. They have obtained full support from all persons they have been able to contact except Dorothy and Phillip Lawson. I accept that NTS has been authorised by the Barkandji people to apply to have the compensation claim dismissed.
Case: McKenzie v South Australia (2005) 214 ALR 214
Outcome: referred to
I am conscious that the Court's power under Order 35A rule 3 and under s 84C of the Native Title Act must be exercised cautiously. The applicable principles are helpfully set out by Finn J in McKenzie v South Australia (2005) 214 ALR 214 at [25] et seq. For the reasons set out above, I am satisfied however, that it is appropriate to exercise those powers in the present circumstances. I shall therefore make the orders sought by NTS. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 12 January 2007 Counsel for the applicant: The applicant did not appear. Counsel for the respondent: The respondent did not appear. Counsel for New South Wales Native Title Services Ltd: S Phillips Date of Hearing: 5 December 2006 Date of Judgment: 12 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/8.html
Case: Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57
Outcome: referred to
For a number of years this Court has taken the view that copyright litigation is appropriately commenced in this Court even if the monetary claim is small. I refer to LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 , Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992), Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 and Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57.
Case: Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815
Outcome: referred to
For a number of years this Court has taken the view that copyright litigation is appropriately commenced in this Court even if the monetary claim is small. I refer to LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 , Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992), Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 and Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57.
Case: Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844
Outcome: followed
I see no reason not to apply that principle in this case. Accordingly, I will order that the costs ordered to be paid, including disbursements, not be reduced by one-third under O 62 r 36A(1), for the nature of the claim being one appropriately brought in the Federal Court is "good reason" to depart from that rule: Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] per Finkelstein J. It also follows that there is no scope for the application of O 62 r 36A(2). 14 The applicant's submission was that the aforesaid costs should be assessed on an indemnity basis because the respondents' conduct was unreasonable. The respondents conceded liability on the copyright claim on the fifth day of trial so that any submission that costs should be assessed on an indemnity basis because of an unreasonable denial of liability cannot go beyond that time. 15 The circumstances in which an unsuccessful party may be ordered to pay costs on a basis other than a party and party basis have been considered in a number of authorities.
Case: Colgate-Palmolive v Cussons (1993) 46 FCR 225
Outcome: referred to
The matter was also discussed by Shepherd J in Colgate-Palmolive v Cussons (1993) 46 FCR 225. Shepherd J set out six principles or guidelines at 232-234 and I refer to those principles or guidelines. The discretion is a broad one and must be exercised according to the particular circumstances of the case. I have considered the submissions and I have had regard to the matters identified in my reasons as to damages: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 at [24] - [30] . I am not persuaded that the respondents' conduct was of such a nature as to justify an award of costs on an indemnity basis. The applicant was put to proof in relation to its claim for infringement of copyright, but that did not add to the length of the trial in any substantial way.
Case: Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992
Outcome: referred to
For a number of years this Court has taken the view that copyright litigation is appropriately commenced in this Court even if the monetary claim is small. I refer to LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 , Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992), Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 and Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397
Outcome: followed
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 , Woodward J said (at 401): "I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the Court will need to consider how it should exercise its unfettered discretion."
Case: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746
Outcome: referred to
The matter was also discussed by Shepherd J in Colgate-Palmolive v Cussons (1993) 46 FCR 225. Shepherd J set out six principles or guidelines at 232-234 and I refer to those principles or guidelines. The discretion is a broad one and must be exercised according to the particular circumstances of the case. I have considered the submissions and I have had regard to the matters identified in my reasons as to damages: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 at [24] - [30] . I am not persuaded that the respondents' conduct was of such a nature as to justify an award of costs on an indemnity basis. The applicant was put to proof in relation to its claim for infringement of copyright, but that did not add to the length of the trial in any substantial way.
Case: LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10
Outcome: referred to
For a number of years this Court has taken the view that copyright litigation is appropriately commenced in this Court even if the monetary claim is small. I refer to LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 , Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992), Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 and Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57.
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: cited
161 of the Act, like s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), allows an appeal to this Court only on a question of law. The existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, but is also the subject matter of the appeal itself: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 per Gummow J. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 253-7. In Birdseye , Branson and Stone JJ held (at 325) that: "... O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law . It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal" (emphasis added).
Case: Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411
Outcome: referred to
Kennedy complained that the Panel erred by failing to identify the evidence, if any, it relied on to arrive at the finding that the period of Mr Kennedy's serious misfortune was limited to the periods between February to November 1998 and from July 1999 to April 2000. It was submitted that, had it done so, it may have been possible to discern why it considered that Mr Kennedy had not established his claim for the longer period during which he said he had suffered such misfortune: see Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 422. In this Court he tacitly accepted the Panel's finding that the relevant period concluded in May 2000 and confined himself to arguing that the Panel should have found that he was incapacitated continuously from February 1998 to May 2000. To establish an error of law, Mr Kennedy must show that there was no evidence that was accepted by the Panel which supported its finding that the period of serious misfortune suffered by him was limited to February 1998 to November 1998 and from July 1999 to April 2000. The Panel dealt with the period of Mr Kennedy's serious misfortune in paragraphs 62 and 81-3 of its reasons: see at [21] above. In paragraph 83, the Panel found that "on the whole of the evidence" Mr Kennedy suffered serious misfortune for these two periods. Implicitly, it did not accept that Mr Kennedy suffered serious misfortune from December 1998 to June 1999 or from May 2000 to May 2001. In the course of its reasons the Panel referred to various parts of the evidence, including: