mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571
Outcome: followed
In Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 Bennett J summarised the principles to be applied when considering an application that costs be paid forthwith. Her Honour observed: [104] ... the following principles emerge: &#8226; The general principle is that costs ought to be resolved when the proceeding has been concluded and the rights of the parties have been finally determined. However, O 62 rule 3(3) contemplates that, in certain circumstances, the general principle can be varied, as a matter of the court's discretion. &#8226; The exercise of the discretion should only be exercised where the interests of justice in the particular case require a departure form the general practice. &#8226; The discretion should be exercised in favour or [sic] a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule. &#8226; One consideration is the length of time that the proceedings will conclude, in the ordinary course of events. &#8226; Where costs are sought in respect of a successful strike out application, the fact that the unsuccessful party failed to remedy defects despite clear notice of those defects, may make appropriate immediate taxation and payment. &#8226; Costs incurred by reason of an ill-considered pleading may give rise to an exception to the principle that the costs await the final resolution of the issues between the parties. &#8226; In ordinary circumstances, it would be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately, since that party might ultimately be entitled to an order for costs in the substantive proceeding. 22 The making of declaratory and injunctive orders on 2 April 2008 unquestionably brought that aspect of the claims for relief as against those Respondents to an end. Left to be resolved was a determination of damages.
Case: Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236
Outcome: cited
Subject to my being satisfied that Mr Pantzer does not hold surplus moneys from the administration of Dr Wenkart's estate in bankruptcy in an amount that exceeds the amount to which he is "lawfully entitled" within the meaning of order 1 of the consent orders made on 11 March 2002, I conclude that the Court should make "orders in aid" of the kind sought by the cross-claim. The parties will be given an opportunity to make submissions on the terms of the order or orders appropriate to be made and as to whether the realisation of the charge should be deferred whether to allow Dr Wenkart to pay to Mr Pantzer the amount to which he is lawfully entitled, to allow the total amount to which Mr Pantzer is legally entitled to be further clarified or for any other reason. My present view, however, is that to reduce the risk of yet further litigation between the parties, an independent person, rather than Mr Pantzer, should be appointed as trustee for the sale of the Paddington property (see Guardian Mortgages Pty Ltd v Miller [2004] NSWSC 1236 at [122] ). 89 Having regard to the reasons for judgment of the Full Court on appeal from the taxation judgment at first instance, I accept that the remuneration, costs and expenses of the trustee for sale and the legal expenses of transferring the Paddington property to the purchaser should be paid from the proceeds of the sale of the property as amounts to which Mr Pantzer is "lawfully entitled" from Dr Wenkart. 90 Some additional issues were also canvassed at the hearing of this matter.
Case: Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466 
Outcome: cited
The appeals to the Full Court from the taxation judgment at first instance did succeed ( Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466). In each appeal the Full Court ordered that the appeal be allowed, the orders made by the primary judge be set aside "and in lieu thereof the appeal against the decision of the taxing officer ... be dismissed" . The Full Court additionally ordered in each appeal that Dr Wenkart pay Mr Pantzer's costs of the appeal to the Full Court and the costs of the appeal from the decision of the taxing officer. It is plain that the Full Court did not overlook the observation made by me in the taxation judgment at first instance at [27]; it is expressly referred to in the reasons for judgment of the Full Court at [27]. 9 On 24 October 2006 Dr Wenkart filed a notice of motion in the appellate jurisdiction of the Court seeking to have the orders of the Full Court in each case varied in the following ways: first, by deleting the words "and in lieu thereof the appeal against the decision of the taxing officer ... be dismissed" and replacing them with the words "and the matter otherwise be remitted to the Trial Judge for further consideration in accordance with these reasons" ; secondly, by amending the costs order so as to make clear that while Dr Wenkart was to pay Mr Pantzer's costs of the appeal to the Full Court, Mr Pantzer's costs of the appeal from the decision of the taxing officer were in the discretion of the trial judge. The filing of Dr Wenkart's notice of motion was presumably motivated, at least in part, by the fact that the orders of the Full Court did not merely allow the appeals from the taxation judgment at first instance; they dismissed the appeals from the decisions of the taxing officer notwithstanding that certain of the grounds of appeal against those decisions had not been determined either at first instance or by the Full Court.
Case: Pantzer v Wenkart [2007] FCAFC 27 
Outcome: cited
On 13 March 2007 Dr Wenkart's motion was dismissed with costs by the Full Court ( Pantzer v Wenkart [2007] FCAFC 27). The Full Court indicated in its reasons for judgment that its earlier judgment should be understood to have implicitly rejected the grounds identified in notices of contention upon which Dr Wenkart contended that the taxation judgment at first instance should be affirmed. Those grounds were: "1. The trial judge ought to have held that there was no evidence before the Court which established that the work for which the taxation was performed was work performed in relation to the administration of the estate as an additional basis to reject the Appellant's claim. 2. The trial judge ought to have held that the legal firm, Sally Nash &amp; Co, was never retained by the Appellant in his capacity as Trustee of the Bankrupt Estate of the First Respondent as an additional basis to reject in its entirely the Appellant's claim in relation to costs and disbursements. ... 4. The trial judge ought to have held that the operation of sub-section 167(1) of the Bankruptcy Act 1966 , in the circumstances, limits a bill of costs to a bill of costs which was provided by a person in relation to the administration of the Estate was an additional basis to reject the Appellant's claim." 11 In the meantime an application made by Dr Wenkart to the High Court for special leave to appeal from the substantive judgments of the Full Court had been dismissed with costs. 12 The effect of the judgments of the Full Court is that Dr Wenkart's appeals from the two decisions of the taxing officer stand dismissed. Only this proceeding remains undetermined. The issue that I identified in the taxation judgment at first instance at [27] (see [6] above) is not now open to be determined in the context of the appeals from the decisions of the taxing officer. Having regard to my conclusions below this may be of limited, if any, practical significance.
Case: Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273
Outcome: considered
Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy.
Case: Wenkart v Pantzer (2005) 223 ALR 384
Outcome: considered
On 8 November 2005 I published judgment on the taxation appeals ( Wenkart v Pantzer (2005) 223 ALR 384 ("the taxation judgment at first instance")). I concluded that the appeals from the decisions of the taxing officer should be allowed on the basis that the bills of costs related at least in part to costs not recoverable under the Act. In each case I ordered that the certificate of taxation be set aside and the bill of costs the subject of the certificate be remitted to the taxing officer for taxation in accordance with the reasons for judgment of the Court. 6 In the taxation judgment at first instance at [22]-[27] I identified the issues raised by the taxation appeals. At [27] I observed: "Further, an issue is raised by the applications of whether, by reason of matters pleaded in matter NSD 7051 of 2002, [ie in this proceeding] upon a true and proper accounting neither Mr Pantzer, nor any person who provided services to him in relation to the bankrupt estate of Dr Wenkart, has any present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate. There is considerable overlap between the issues raised for consideration in these proceedings and the issues raised for determination in matter NSD 7051 of 2002. I have been obliged to reach a concluded view on some of those issues for the purpose of determining these proceedings. However, I am inclined to think that the remaining issues should be determined in the context of that matter. The parties will have an opportunity to place submissions before the Court on this question before final orders are made in these proceedings." 7 After considering the submissions of the parties on the question, I decided that the remaining issues should be determined in the context of this proceeding and after the hearing and determination of any appeals from the taxation judgment at first instance. That decision was reached in the light of my conclusion that the certificates of taxation the subject of the taxation appeals should be set aside for reasons unrelated to the remaining issues. The parties were subsequently advised that judgment in this proceeding would not be delivered until after the hearing and determination of the appeals instituted in respect of the taxation judgment at first instance because of the importance in this proceeding of the issues raised in those appeals. It seemed to me that, were the Full Court to allow the appeal from the taxation judgment at first instance and remit the appeal to me to be redetermined in the light of the reasons for judgment of the Full Court, it would be desirable for that redetermination to occur concurrently with the determination of this proceeding.
Case: Wenkart v Pantzer (No 6) [2003] FCA 1210
Outcome: cited
Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy. 66 In Wenkart v Pantzer (No 6) [2003] FCA 1210 Lindgren J dismissed a motion by Dr Wenkart that he be granted an extension of time within which to request that Mr Pantzer's claim for remuneration be taxed. His Honour noted at [34.4] that there was no evidence that Mr Pantzer's claim was excessive and, indeed, an officer of ITSA who had inspected the relevant files had expressed the view that Mr Pantzer had not carried out work unnecessarily "taking all factors into account" . His Honour additionally noted at [34.5] that it: "would be burdensome for Mr Pantzer now to have to prepare and lodge a detailed bill of costs covering the numerous events and documents involved, which occurred or came into existence over the period 30 January 2001 to 15 March 2002." His Honour also observed at [34.6]: "The purpose of the time limit [contained in reg 8.09(1)] is to ensure that finality and certainty are brought to the quantification of a trustee's remuneration within a relatively short period of time." 67 I conclude that, upon the dismissal of Dr Wenkart's motion for an extension of time within which to request that Mr Pantzer's claim for remuneration be taxed, Mr Pantzer became lawfully entitled to the amount claimed, namely $98,095.16. 68 I have already concluded above that Mr Pantzer is lawfully entitled to the amount of the charge payable under the Bankruptcy (Estate Charges) Act 1977 (Cth) (see [56] above).
Case: Wenkart v Pantzer [2003] FCA 364
Outcome: cited
Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204).
Case: Widgery v Tepper (1877) 6 Ch D 364
Outcome: cited
Dr Wenkart placed reliance on the statement of James LJ, with whom Baggallay LJ agreed, in Widgery v Tepper (1877) 6 Ch D 364 at 369 that: "The authorities are sufficient to shew that a charging order cannot be given except for an ascertained sum, and not for costs, charges, and expenses, until they have been taxed." In Wilkie v Wilkie &amp; Anor [1905] VR 80 at 82 Hodges J accepted, on the authority of Widgery v Tepper , that an ex parte order made by him charging a sum of money paid into court as security for costs of an appeal could not stand because the costs had not yet been taxed. See also Fine Real Estate Network Pty Ltd v Howell (unreported, Young J, Supreme Court of New South Wales, 4 December 1997). 82 I do not consider that I am free to accept that the principle invoked by the Court of Appeal in Widgery v Tepper has application in the circumstances of this case to invalidate the charge purportedly granted by Dr Wenkart over the Paddington property. The orders of 11 March 2002 were made by consent (see [15] above). While the proper construction of order 2 of those orders may be open to argument, there is no doubt that Dr Wenkart agreed to charge the Paddington property in favour of Mr Pantzer to secure the amount of remuneration, costs, charges and expenses to which Mr Pantzer was or might become lawfully entitled. He did so to facilitate the consideration by his creditors of a proposal under s 73 of the Act. Having taken the benefit of the agreement reflected in the consent orders, Dr Wenkart is not free now (a) to disown order 2 because of the Full Court's determination of the true extent of Mr Pantzer's lawful entitlements or (b) to suggest that the order cannot be given any practical effect. Having regard to the reasons for judgment of the Full Court, I conclude that the charge effected by order 2 encompasses all amounts to which, during the life of the charge, Mr Pantzer is or becomes lawfully entitled from Dr Wenkart.
Case: Wilkie v Wilkie &amp; Anor [1905] VR 80
Outcome: cited
Dr Wenkart placed reliance on the statement of James LJ, with whom Baggallay LJ agreed, in Widgery v Tepper (1877) 6 Ch D 364 at 369 that: "The authorities are sufficient to shew that a charging order cannot be given except for an ascertained sum, and not for costs, charges, and expenses, until they have been taxed." In Wilkie v Wilkie &amp; Anor [1905] VR 80 at 82 Hodges J accepted, on the authority of Widgery v Tepper , that an ex parte order made by him charging a sum of money paid into court as security for costs of an appeal could not stand because the costs had not yet been taxed. See also Fine Real Estate Network Pty Ltd v Howell (unreported, Young J, Supreme Court of New South Wales, 4 December 1997).
Case: Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118 ; (1999) 85 FCR 134
Outcome: cited
In Bui v Minister for Immigration and Multicultural Affairs [1999] FCA 118 ; (1999) 85 FCR 134 at 148, the Full Court in relation to "waiver" said: 'The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is "undue" may import consideration of compassionate or other circumstances . It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.' (Emphasis added.) 34 The Tribunal noted these remarks at [40] of its reasons for decision. However, there is considerable force in the view that, when the Tribunal came to apply the principles articulated in Bui [1999] FCA 118 ; 85 FCR 134 to the question of "undue cost" and its overriding discretion to waive the requirements of par 4007(1)(c), it failed to properly consider or give any weight to the opinions of Dr Chen. In my view, the opinions of Dr Chen that the appellant's medical condition was improving and that she would require only limited medical treatment in the foreseeable future are relevant considerations to an assessment of what constitutes "undue cost" for the purposes of par 4007(2). By failing to take into account these relevant considerations at [59] (indeed, as I have noted above, any attention given to the evidence of Dr Chen was fleeting at best), in my view the Tribunal was in error and its decision should be set aside on the basis that it failed to properly address this issue. 35 For the above reasons, the appeal is allowed. The decision of the Federal Magistrate of 11 April 2007 should be set aside. The matter is remitted to the Tribunal to be determined according to law. The first respondent is to pay the appellant's costs of the proceedings before the Federal Magistrate and this appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 March 2008 Counsel for the Appellant: Mr I Latham Solicitor for the Appellant: HIV/AIDS Legal Centre Inc Counsel for the Respondent: Mr M Cleary Solicitor for the Respondent: Clayton Utz Dates of Hearing: 14 December 2007 and 25 February 2008 Date of Judgment: 19 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/367.html
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: cited
At this point, I note that the respondent submits that the issue concerning the application of Seligman 85 FCR at 127 was not put to the Federal Magistrate, and therefore cannot be raised before this Court unless leave is granted: see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 56. To the extent that it is necessary, I grant leave to raise this new point on appeal, as I regard it as both cogent and of central relevance. The Minister was on notice that this ground was going to be advanced by the appellant, and consequently no undue prejudice arises.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The appellant also submitted that the Tribunal fell into jurisdictional error by failing to seek an updated opinion from the MOC, and relies on Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 to support this proposition. Given my finding above that the error in this case lies in the Tribunal's taking as correct an opinion of the MOC which, according to the Full Court's construction of reg 2.25A(3), should not have been taken as correct, it is not necessary to make a finding on the appellant's alternative submission. If it were necessary, however, I would observe that, in my view, a failure by the Tribunal to make further inquiries does not, per se and in the absence of a statutory directive to make further inquiries, constitute jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22. Some extra element is needed to demonstrate that the decision of the Tribunal is affected by an erroneous interpretation or application of law. In this case, that element, and consequently the source of the Tribunal's error, is supplied by the circumstances I have discussed above.