mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Outcome: applied
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Townsend v Townsend (No 2) [2001] NSWCA 145
Outcome: applied
question gives rise to a threshold issue were the offers genuine offers of compromise? The plaintiff submitted that they were not genuine offers of compromise, but rather were "invitations to capitulate by discontinuing the proceedings on a basis that each party bear its own costs". There is support in a number of cases for the view that an offer by a defendant that a plaintiff discontinue the proceeding on the basis of each party bearing its own costs is not a genuine offer for the purpose of considering the effect of a Calderbank offer on a question of costs: McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 at [9] - [11] ; Australian Competition &amp; Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 at [59] - [64] ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] ; Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union (supra) at [7]; Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) (No 2) [2006] FCA 755 at [20] . (The reasoning in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 and Townsend v Townsend (No 2) [2001] NSWCA 145 does not support the proposition that an offer by a defendant that the proceeding be discontinued with no order as to costs cannot be regarded as a genuine offer to compromise.)
Case: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536 ; (1993) 46 FCR 225
Outcome: applied
to s 43(1) of the Federal Court of Australia Act 1976 (Cth) the Court has a broad general discretion in determining how, in what manner, and whether, costs should be borne and paid as a result of the conclusion of any proceeding. The usual order for costs is that costs follow the event and are paid on a party/party basis unless there are special circumstances which warrant the making of some other order. However, it has long been established that the Court may award costs on a solicitor/client or indemnity basis where the particular circumstances of the case warrant the Court departing from the usual order of party/party costs: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536 ; (1993) 46 FCR 225. In Colgate-Palmolive Company v Cussons Pty Limited (supra), Sheppard J set out some of the circumstances which he considered had been thought to warrant the exercise of the discretion to make an order for payment of costs not on the usual basis of party/party costs but on the basis of indemnity costs. Those circumstances included "an imprudent refusal of an offer to compromise".
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397
Outcome: applied
has also been long established that in an appropriate case indemnity costs may be awarded against an unsuccessful party where it is established that a proceeding has been commenced in circumstances where the applicant properly advised by legal advisers should have known that it had no prospects of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301, French J said at 303: "It is sufficient, in my opinion, to enliven the discretion to award such [indemnity] costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case."
Case: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301
Outcome: applied
has also been long established that in an appropriate case indemnity costs may be awarded against an unsuccessful party where it is established that a proceeding has been commenced in circumstances where the applicant properly advised by legal advisers should have known that it had no prospects of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301, French J said at 303: "It is sufficient, in my opinion, to enliven the discretion to award such [indemnity] costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case."
Case: Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
Outcome: applied
refusal or rejection of a Calderbank offer, of itself, does not automatically mean, or give rise to a presumption, that the Court should make an order for costs on either a party/party basis or (depending on the circumstances) an indemnity basis where the result is less favourable to the offeree than the offer. It must be established that it was unreasonable in all the circumstances for the offeree to reject the offer : Jacomb v Australian Municipal, Administrative, Clerical &amp; Services Union [2004] FCA 1600 at [6] ; Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at 440. In Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (supra), the Victorian Court of Appeal accepted the proposition that the rejection of a Calderbank offer should only lead to the making of a special costs order, other than a party/party costs order, where the rejection of the offer was unreasonable. The Court of Appeal, at 442, set out a non-exhaustive list of matters to which a court should have regard in considering a submission that the rejection of a Calderbank offer was unreasonable: "(a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree's rejecting it." In the present circumstances, the relevant question to ask and answer is whether the rejection of the offers by the plaintiff was unreasonable having regard to the relevant circumstances: Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (supra) at 441.
Case: Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Outcome: cited
do not agree with the proposition that an invitation to a plaintiff to discontinue proceedings with no order as to costs is not a genuine attempt to resolve the proceeding by way of compromise for the purposes of considering the consequences of an offer made in a Calderbank letter. In an appropriate case, the giving up by a defendant of the opportunity to recover from the plaintiff the costs it has incurred in defending a proceeding can constitute consideration for a compromise which is real, particularly where the costs incurred have been substantial. The reasoning of the New South Wales Court of Appeal in Leichardt Municipal Council v Green [2004] NSWCA 341 supports this proposition. The cases to which I have referred in the previous paragraph do not appear to have taken into account the fact that such an offer involves the defendant giving up the opportunity to recover its costs from the plaintiff. If the proceeding was pursued to judgment in favour of the defendant, then the defendant would be able to obtain an order to recover its costs from the plaintiff. The renunciation of that opportunity, in my opinion, clothes the offer with the cloak of a genuine compromise of substance. As Giles J said in Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368: "Compromise connotes that a party gives something away".
Case: Leichardt Municipal Council v Green [2004] NSWCA 341
Outcome: applied
do not agree with the proposition that an invitation to a plaintiff to discontinue proceedings with no order as to costs is not a genuine attempt to resolve the proceeding by way of compromise for the purposes of considering the consequences of an offer made in a Calderbank letter. In an appropriate case, the giving up by a defendant of the opportunity to recover from the plaintiff the costs it has incurred in defending a proceeding can constitute consideration for a compromise which is real, particularly where the costs incurred have been substantial. The reasoning of the New South Wales Court of Appeal in Leichardt Municipal Council v Green [2004] NSWCA 341 supports this proposition. The cases to which I have referred in the previous paragraph do not appear to have taken into account the fact that such an offer involves the defendant giving up the opportunity to recover its costs from the plaintiff. If the proceeding was pursued to judgment in favour of the defendant, then the defendant would be able to obtain an order to recover its costs from the plaintiff. The renunciation of that opportunity, in my opinion, clothes the offer with the cloak of a genuine compromise of substance. As Giles J said in Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368: "Compromise connotes that a party gives something away".
Case: Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632
Outcome: cited
It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant's application. Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] ; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13] . With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28] .
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: cited
It is not sufficient to say, as the appellant does, that upon the Federal Magistrates Court making its decision, he tried harder to find further material. The appellant was well aware that his credit was in issue before the Tribunal, and he should have made all efforts to produce all the material he wished to rely upon before the Tribunal. Even if the new evidence would now be admissible, to which I refer to, for example, Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446, remembering that this is a review procedure, in my view, I should not allow the additional information to be adduced by the appellant before me. 21 There is a public interest in disposing of public law cases in a timely manner and this is not a case where the issue to be agitated here was not appropriately and clearly put to the appellant before the Tribunal. Fairness does not dictate in this case that I should allow the appellant to tender into evidence any new material for the purposes of this appeal. My function is to review the decision of the federal magistrate and the Tribunal and not to consider the appellant's visa application on the merits and de novo. This is particularly so where the Tribunal did not accept the appellant as a witness of truth. 22 I further observe that the additional material seems to me to be relevant to the appellant's credibility. The Tribunal, in considering the material of Mr Kalin, was treating it as confirmatory of its view that the appellant was not telling the truth about his involvement with Jehovah's Witnesses. Even if the Tribunal had the additional information before it, any response, in my view, would not have affected the Tribunal's finding about the credit-worthiness of the appellant. I am not satisfied that there is any significant possibility that the decision of the Tribunal or the Federal Magistrates Court would have been different if the additional information now sought to be relied upon was in fact before either the Tribunal or the federal magistrate. 23 In my view, the approach of the Tribunal and the federal magistrate, and their conclusions, were correct. Accordingly, the appeal will be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 17 May 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: V McWilliam Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 May 2007 Date of Judgment: 7 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/710.html
Case: Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480
Outcome: cited
I now turn to the question of the additional information. In my view the appellant has had ample opportunity to put material to the Tribunal and to place any evidence to rebut the statements of Mr Kalin. In fact, the appellant did address the Federal Magistrates Court as to Mr Kalin possibly being wrong. Even before the federal magistrate no additional information was sought to be tendered into evidence. No sufficient explanation is now offered in relation to the additional information sought to be relied upon and why it was not sought to be relied upon earlier: see generally, Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 at [68] and following.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
In any event, it is apparent from this case that the Tribunal did make inquiries as to whether conscientious objectors were sent to prison. It relied upon information from Mr Kalin in forming its view on whether conscientious objectors were sent to prison. I see nothing wrong with the approach of the Tribunal in making this choice in its assessment of the information, and this is clearly a factual matter for it: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].
Case: S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133
Outcome: cited
It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant's application. Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] ; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13] . With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28] .
Case: SZGQN v Minister for Immigration and Citizenship [2007] FCA 428
Outcome: cited
It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant's application. Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] ; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13] . With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28] .
Case: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
Outcome: cited
It would appear that s 422B of the Migration Act 1958 (Cth) applies to the appellant's application. Prior to the introduction of s 422B there was generally no obligation on the Tribunal to conduct its own investigation or to make some particular inquiry: see generally, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] ; Applicant S214 of 2003 v Refugee Review Tribunal (2006) 90 ALD 632 at 641; and S1194/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1133 at [13] . With the introduction of s 422B this position is made clear: see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28] .
Case: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510
Outcome: cited
weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.
Case: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632
Outcome: cited
where reservations as to the authenticity of one document have been brought to the attention of a claimant, there may be no necessity to separately warn a claimant as to reservations being experienced in respect to corroborating material: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632. The Tribunal had there found a newspaper article to be a fabrication. Corroborating evidence was from the claimant's sister. The corroborating evidence was in the form of a statutory declaration; the question was whether its contents were correct. There was there held to be no necessity for the Tribunal to go back and warn the claimant that the Tribunal would find the sister's evidence also to be fabricated. In rejecting the contention, Edmonds J concluded: [33] At the end of [the] day, the applicant complained that the Tribunal did not warn him that it would find that the corroborating evidence of his sister had been fabricated. The simple answer to that contention is that it was not obliged to do so. The applicant had the critical issue, viz., the authenticity of the newspaper article, drawn to his attention. He proffered further evidence on this point, including the sister's statutory declaration, which was rejected. There was no requirement for the Tribunal, acting in an inquisitorial capacity, to go back to the applicant warning him that this was one of the reasons why it would ultimately reject the newspaper article. [34] There was some suggestion the Tribunal was obliged to call the sister as a witness before it could make the findings that it did, but that suggestion must be rejected. While it is the case that it is the Tribunal which "obtains" or "acquires" evidence ... this says nothing about whether the Tribunal was obliged to call the applicant's sister. It was for the applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant's claims, including by calling his sister as a witness. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate ... Even if the applicant had made a request under s 426 that the sister be called (which he did not) the Tribunal would not have been obliged to do more than have regard to the applicant's wishes. The Tribunal did not commit jurisdictional error by failing to call the applicant's sister as a witness, or by making the findings it did, having not called the sister as a witness. (Citations omitted) An opportunity to be heard thus does not involve informing a claimant as to the prospect of adverse findings being made in respect to each particular aspect of the case sought to be advanced.