mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56
Outcome: referred to
The majority (Gaudron, Gummow and Kirby JJ) took a broader view of the exceptions to the usual order or circumstances in which it is not made. Gaudron and Gummow JJ said (at 88 [40]): There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. (See also at 120-123 [134] per Kirby J and Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 at [26] per Gleeson CJ, Gummow, Hayne and Crennan JJ.) 11 The observations of the High Court were made in the context of s 69(2) of the Land and Environment Court Act 1979 (NSW), but I think it is clear enough that those observations apply equally to the empowering provision in this case, namely, s 43 of the Federal Court of Australia Act 1976 (Cth). 12 The cross-respondents Mr Michael Gargan, Selected Seeds and Top End Rural Supplies submit that the usual order should be made in this case. In the course of their submissions they also submitted that the application for separate trials was premature. 13 The applicants submit that costs should be awarded in their favour because the application would have succeeded had Selected Seeds (in its application for leave to defend) not put forward an arguable plea of proportionate liability on 25 July 2007. There is an analogy here with costs thrown away. The applicants submit that their costs associated with the application are in effect wasted costs because had Selected Seeds raised the arguable plea of proportionate liability earlier, they would not have been incurred (see the discussion of costs thrown away in G E Dal Pont, Law of Costs (2003) [p 23] [14.36]). 14 The relevant events in chronological order are as follows. 15 The applicants commenced this proceeding on 3 April 2006, and issued their application for an order for separate trials on 24 November 2006. As at the latter date, Landmark had filed a defence and issued a cross-claim against Mr Michael Gargan. On 15 September 2006, Mr Michael Gargan issued cross-claims against Simon and Kate Gargan, Selected Seeds, Australian Premium Seeds Pty Ltd, Seed Testing Laboratory of Australia Pty Ltd, and the State of Queensland. On 16 November 2006, Selected Seeds issued cross-claims against Simon and Kate Gargan and Seed Testing Laboratory of Australia Pty Ltd and a new party to the proceeding, Top End Rural Supplies Pty Ltd. 16 It is reasonable to infer that the applicants issued their application after the cross-claims were issued, and after it had become apparent that the whole proceeding would not be ready for trial for some time and, in the applicants' view, would involve a number of issues which were not issues in their claim against Landmark.
Case: NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77
Outcome: referred to
In the course of submissions, the applicants suggested that they should be awarded costs on a solicitor and client basis, but there are no circumstances in this case which warrant such an order ( Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
The application was unsuccessful. The usual order as to costs in those circumstances is that the costs of the successful party to an application are paid by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 (" Oshlack ") at 96-97 [66]-[68] per McHugh J. There are exceptions to the usual order or circumstances in which it is not made. The difference between the majority and minority in Oshlack was as to the width of the exceptions to the usual order or circumstances in which it is not made. McHugh J (with whom Brennan CJ was in general agreement) was in the minority and he said (at 97-98 [69]-[70]) (footnotes omitted): The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd , Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." 'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. Apart from anomalous examples in the equity jurisdiction, there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.
Case: Shrimp v Landmark Operations Limited [2007] FCA 1468
Outcome: referred to
I published reasons for making those orders: Shrimp v Landmark Operations Limited [2007] FCA 1468 and those reasons should be read with these reasons. 5 The relevant parties have now made submissions on the questions of costs reserved in the above orders. Having considered the submissions, I will make the following orders as to costs: 1. On the applicants' notice of motion dated 24 November 2007: 1. Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd and Top End Rural Supplies Pty Ltd be jointly and severally liable to pay the applicants' costs of and incidental to the notice of motion to be taxed in default of agreement. 2. Each of the parties liable under the above order be at liberty to apply for orders as to the appropriate contribution to the said costs as between them. 2. On Selected Seeds Pty Ltd's notice of motion dated 29 March 2007 the costs of the notice of motion be reserved save and except that there be no order as to the costs of the hearing on 13 July 2007. Similar orders to those to be made on Selected Seeds' notice of motion dated 29 March 2007 will be made on the notices of motion of Top End Rural Supplies and Mr Michael Gargan, respectively. 6 My reasons for making these orders follow.
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: followed
Before leaving the form of orders, it is necessary to address a submission made by Murdaca that, on remittal, the AAT's findings of fact in relation to particular corporations should not be re-agitated. The way in which the AAT conducts a review of the disqualification is prescribed by the AAT Act and the authorities that have considered it. For present purposes, it is sufficient to note that the question for the AAT is "not whether the decision which the decision-maker made was the correct or preferable one on the material before him . The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT] ": Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 and Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] - [101] . Where, as here, there is no statutory provision confining the AAT to the material before ASIC, the material before the AAT on remittal may include such information about conduct and events that occurred after the decision under review as exists at the time the AAT makes its decision : Shi .
Case: Dwyer v National Companies and Securities Commission (1988) 13 ACLR 716
Outcome: followed
As those earlier decisions make clear, the preconditions to the operation of the section are just that preconditions. For example, ASIC is not denied jurisdiction if the matters contained in a s 533 report have been wholly or partly rectified: Jorgensen v Australian Securities and Investments Commission (1999) 30 ACSR 481 at 483 and Dwyer v National Companies and Securities Commission (1988) 13 ACLR 716 at 720. As Heerey J said in Jorgensen , once s 533 reports have been lodged regarding two or more relevant corporations in respect of which the person was an officer within the previous seven years, the jurisdiction to make the order is established: at 483. Whether the matters in the report have been wholly or partly rectified is a matter that goes to the merits of whether ASIC, or in this case the AAT standing in the shoes of ASIC, should exercise the jurisdiction to make a disqualification order, not the existence of that jurisdiction.
Case: Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159 ; (2006) 24 ACLC 1526
Outcome: cited
"Officer" of a corporation is defined in s 9 of the Act and is in analogous terms. "Officer" includes: (a) a director or secretary of the corporation; or (b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation's financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation); or ... A person (not a director of a corporation) may be disqualified from managing a corporation if they are otherwise involved in, or participate in, the management of the corporation in the prescribed ways. These latter capacities are sometimes described as being a "deemed director" or a "shadow director": Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159 ; (2006) 24 ACLC 1526. Such descriptions can, at times, be misleading. Names and labels aside, what is required is a critical assessment of the way in which a corporation is managed and then an assessment as to whether the conduct of the person concerned falls within one or more of the categories identified. 12 Returning to the substantive provision at issue, s 206F(1)(a)(ii) specifies two conditions to be satisfied "within 7 years immediately before ASIC gives a notice under paragraph (b)(i)" (emphasis added). The conditions are: (1) the person must have been an officer of 2 or more corporations; and (2) while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under s 533(1) of the Act about the corporation's inability to pay its debts . 13 Section 206F , in its current form, was introduced as part of the Corporate Law Economic Reform Program Bill 1998 (Cth) ("CLERP"). The predecessor to s 206F was s 600 of the Corporations Law ("the Law"). Although the language of the sections is not identical, a number of earlier decisions that considered s 600 of the Law continue to be of assistance.
Case: Jorgensen v Australian Securities and Investments Commission (1999) 30 ACSR 481
Outcome: applied
As those earlier decisions make clear, the preconditions to the operation of the section are just that preconditions. For example, ASIC is not denied jurisdiction if the matters contained in a s 533 report have been wholly or partly rectified: Jorgensen v Australian Securities and Investments Commission (1999) 30 ACSR 481 at 483 and Dwyer v National Companies and Securities Commission (1988) 13 ACLR 716 at 720. As Heerey J said in Jorgensen , once s 533 reports have been lodged regarding two or more relevant corporations in respect of which the person was an officer within the previous seven years, the jurisdiction to make the order is established: at 483. Whether the matters in the report have been wholly or partly rectified is a matter that goes to the merits of whether ASIC, or in this case the AAT standing in the shoes of ASIC, should exercise the jurisdiction to make a disqualification order, not the existence of that jurisdiction. 16 Moreover, once the preconditions are met, ss 206F(1)(b) of the Act specifies what ASIC must then do. It requires ASIC to give the person a notice in the prescribed form requiring them to demonstrate why they should not be disqualified. In the present case, the notice was in the form set out in [3] above. Prior to reaching a decision, ASIC, in addition to giving the notice, must also make available to the person all the material available to ASIC on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock v Forbes (1997) 150 ALR 186 at 193-94. That does not necessarily mean an oral hearing: Jorgensen at 486.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314
Outcome: followed
To understand why, it is necessary to return to the basic structural provisions of the AAT Act and the authorities explaining those provisions. Section 43(1) of the AAT Act gives to the AAT "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...". Important consequences flow from that provision. It is all the "powers and discretions" which ASIC had when making the disqualification order, not the procedures which bind ASIC, to which the AAT accedes: cf Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at [41] and [44]. The AAT's procedures are prescribed by s 39 of the AAT Act : see also Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 at 402-403. As a result, any failure on the part of ASIC to comply with its statutory procedures will not deprive the AAT of statutory authority to deal with an application for review of the decision of ASIC. Any such defect is "cured" by the AAT when an applicant is made aware of the substance of the allegation made against them and the AAT provides them with an opportunity to respond to the allegations: eg Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at [32] .
Case: Shi v Migration Agents Registration Authority [2008] HCA 31
Outcome: followed
Before leaving the form of orders, it is necessary to address a submission made by Murdaca that, on remittal, the AAT's findings of fact in relation to particular corporations should not be re-agitated. The way in which the AAT conducts a review of the disqualification is prescribed by the AAT Act and the authorities that have considered it. For present purposes, it is sufficient to note that the question for the AAT is "not whether the decision which the decision-maker made was the correct or preferable one on the material before him . The question for the determination of the [AAT] is whether that decision was the correct or preferable one on the material before the [AAT] ": Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 and Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] - [101] . Where, as here, there is no statutory provision confining the AAT to the material before ASIC, the material before the AAT on remittal may include such information about conduct and events that occurred after the decision under review as exists at the time the AAT makes its decision : Shi .
Case: Sullivan v Secretary, Department of Transport (1978) 1 ALD 383
Outcome: cited
To understand why, it is necessary to return to the basic structural provisions of the AAT Act and the authorities explaining those provisions. Section 43(1) of the AAT Act gives to the AAT "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...". Important consequences flow from that provision. It is all the "powers and discretions" which ASIC had when making the disqualification order, not the procedures which bind ASIC, to which the AAT accedes: cf Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at [41] and [44]. The AAT's procedures are prescribed by s 39 of the AAT Act : see also Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 at 402-403. As a result, any failure on the part of ASIC to comply with its statutory procedures will not deprive the AAT of statutory authority to deal with an application for review of the decision of ASIC. Any such defect is "cured" by the AAT when an applicant is made aware of the substance of the allegation made against them and the AAT provides them with an opportunity to respond to the allegations: eg Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at [32] .
Case: Visnic v Australian Securities and Investments Commission [2007] HCA 24 ; (2007) 231 CLR 381
Outcome: cited
I should note that it is now settled that ASIC does not exercise the judicial power of the Commonwealth when it acts under s 206F: Visnic v Australian Securities and Investments Commission [2007] HCA 24 ; (2007) 231 CLR 381. 10 The phrase "managing corporations" is addressed in s 206A of the Act . It provides in s 206A(1) that a person disqualified from managing corporations under Pt 2D.6 commits an offence if: (a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (b) they exercise the capacity to affect significantly the corporation's financial standing; or (c) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation) to the directors of the corporation: (i) knowing that the directors are accustomed to act in accordance with the person's instructions or wishes; or (ii) intending that the directors will act in accordance with those instructions or wishes.
Case: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) [2004] FCAFC 248 ; 139 FCR 344
Outcome: applied
To understand why, it is necessary to return to the basic structural provisions of the AAT Act and the authorities explaining those provisions. Section 43(1) of the AAT Act gives to the AAT "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision...". Important consequences flow from that provision. It is all the "powers and discretions" which ASIC had when making the disqualification order, not the procedures which bind ASIC, to which the AAT accedes: cf Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at [41] and [44]. The AAT's procedures are prescribed by s 39 of the AAT Act : see also Sullivan v Secretary, Department of Transport (1978) 1 ALD 383 at 402-403. As a result, any failure on the part of ASIC to comply with its statutory procedures will not deprive the AAT of statutory authority to deal with an application for review of the decision of ASIC. Any such defect is "cured" by the AAT when an applicant is made aware of the substance of the allegation made against them and the AAT provides them with an opportunity to respond to the allegations: eg Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at [32] .
Case: Re Bosnjak Holdings Pty Ltd [2005] NSWSC 527
Outcome: followed
recently, in Re Bosnjak Holdings Pty Ltd [2005] NSWSC 527 , Young CJ in Eq came to the view that the power under section 447A is wide enough to authorise an adjournment for a further 60 days from the period set out in the statute. His Honour said that that is the maximum which should ordinarily be allowed. Section 439B(2) now states that the period of the adjournment, or the total periods of adjournment, must not exceed 45 business days. Here, the section 439A meeting was convened on 20 February 2009 and there have been further adjournments as mentioned above.
Case: Re LOCM Pty Ltd (Administrators Appointed) (1997) 79 FCR 35
Outcome: followed
Re LOCM Pty Ltd (Administrators Appointed) (1997) 79 FCR 35 , Goldberg J came to the view that the court has power under section 447A to make an order extending the time fixed by section 439B(2). His Honour was of the view that the effect of the authorities was that it was not appropriate to extend the period for more than the 60 days which was then the maximum provided under section 439B(2). Goldberg J considered in some detail the authorities which have dealt with the power under section 447A. The adjournment which is now sought is 40 business days from 20 April 2009. It may be argued that this period is a significant extension of the period of 45 business days from the date of the meeting prescribed by s 439B(2) , but even if that is so, it is my view that the authorities to which Goldberg J referred in Re LOCM are wide enough to permit the order which is sought. His Honour observed that the power under section 447A is not limited to the operation of filling in gaps in the legislative scheme but that its operation enables the alteration of the operation of a provision in Part 5.3A in relation to a particular company, in particular circumstances.
Case: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Outcome: referred to
is true, of course, as the authorities have established, that the legislative intention is that administrations under Part 5.3A are to proceed expeditiously and that the spirit of Part 5.3A is to prevent administrations from being unduly extended. Nevertheless, that needs to be balanced against the policy expressed in a number of the leading authorities that the court ought also to bear in mind the interest of the creditors in obtaining the possibility of a greater dividend than that which would follow from a making of a winding-up order; see for example Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 613. Here, the creditors have requested the administrator to grant an extension up to 1 June but for reasons mentioned above, the administrator has taken the view that a slightly longer period may be required. In the particular circumstances of this case, it seems to me to be appropriate to exercise the power conferred under 447A to make the order which is sought. I will therefore make orders in accordance with the draft orders provided to me. I will sign and date the orders, in accordance with the draft dated 27 April 2009 and that will be placed with the court papers. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 30 April 2009 Solicitor for the Plaintiff: Shaw Reynolds Bowen &amp; Gerathy Date of Hearing: 27 April 2009 Date of Judgment: 27 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/427.html
Case: C A Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 , 52 IPR 42
Outcome: considered
In some circumstances it may be accepted that an argument may be permitted to be raised even though it has been " unequivocally disclaimed " before the trial judge: eg, C A Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [32] [35], [2000] FCA 1539 ; 52 IPR 42 at 57 61. The argument there sought to be raised on appeal was an argument important to trade mark law and one where it was conceded that no further evidence would have been relied upon had the argument been pursued at trial. 36 In the present appeal, if the s 91R(3) argument is to be pursued, no further evidence is required to be adduced on appeal. But, and whatever other difficulties would otherwise have been confronted, a fundamental difficulty is that the argument is one without substance.