mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164
Outcome: cited
The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: considered
Traditionally, the test applied under O 20 r 1 has been that stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 (" General Steel ") at 129-130. The nature and scope of the relevant principles have been discussed by the High Court in recent decisions: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority of New South Wales ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 80 ALJR 1100. 9 The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].
Case: Hicks v Ruddock [2007] FCA 299 
Outcome: cited
The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].
Case: Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572
Outcome: cited
The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.
Case: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688
Outcome: cited
The extent to which s 31A of the Federal Court of Australia Act relaxes the test formulated in General Steel has been the subject of observations in recent decisions of this Court: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; Garrett v Macks [2006] FCA 601 per Lander J at [21]-[22]; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]-[29]; Hicks v Ruddock [2007] FCA 299 per Tamberlin J at [12].
Case: Magman International v Westpac Banking Corporation (1991) 32 FCR 1
Outcome: cited
The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.
Case: Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286
Outcome: cited
The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673
Outcome: cited
The alternative claim for declarations avoids the difficulties of proving causation and some loss and damage but raises additional difficulties of its own. The respondents referred to authorities where the Court has said that it is not appropriate to make a declaration of a contravention of a provision of the Trade Practices Act either in the particular circumstances of the case before it, or in the absence of determining if the applicant is entitled to further relief such as damages under s 82 of the Trade Practices Act : Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18 ; (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307; Magman International v Westpac Banking Corporation (1991) 32 FCR 1; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 192-193; Jenkins v NZI Securities Australia Ltd (1994) 52 FCR 572 at 576; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673 per Hely J at 676 [13]-[21]. The cases suggest that one should be cautious about granting no more than declaratory relief on a summary judgment application and a consideration of all the circumstances may suggest that this should not be done. In my opinion it is not appropriate to grant a declaration of a contravention of the provision of the Trade Practices Act on an application for summary judgment unless the case is a particularly clear one and the other circumstances suggest that it is an appropriate case to do so. For the reasons I have given this is not a clear case, and the circumstances outlined in the following paragraph suggest that this is not an appropriate case.
Case: Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867
Outcome: cited
In the reasons for judgment delivered on 21 December 2005, I said Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867 (at [5]): 'The application not only lacked merit but it appeared, in preparation, to have fallen short of the minimum standards of professional competence that should be expected in an application in this Court where the applicant is represented by a legal practitioner. The submissions also disclose a failure to give adequate consideration to key legal issues such as the non-statutory character of the Scheme.' I made an order that: 'The solicitors for the applicants are to show cause by written submissions filed on or before 28 February 2006 why they should not pay the respondent's costs of the application.' The respondent was to file written submissions on the question of costs by 28 March 2006. Written submissions were filed with the Court by the applicants' solicitors and on behalf of the respondents. 7 Section 43 of the Federal Court of Australia Act 1976 (Cth) provides, inter alia: '(1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. ... (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.' 8 Order 62 r 9 of the Federal Court Rules provides: '(1) Without limiting the Court's discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a legal practitioner is responsible (whether personally or through a servant or agent), the Court may, after giving the legal practitioner a reasonable opportunity to be heard, do any of the following: (a) disallow the costs as between the legal practitioner and the legal practitioner's client; (b) if the legal practitioner is a barrister disallow the costs as between the barrister and the barrister's instructing solicitor; (c) direct the legal practitioner to repay to the client, costs which the client has been ordered to pay to another party; (d) direct the legal practitioner to indemnify any party other than the client against costs payable by the party indemnified. ... (3) Before making an order under subrule (1), the Court may refer the matter to a Registrar for inquiry and report. (4) The Court may order that notice of any proceeding or order against a legal practitioner be given, as specified in the order, to: (a) the legal practitioner's clients; or (b) if the legal practitioner is a barrister the barrister's instructing solicitor. (5) For the purpose of giving effect to a costs order, the Court may give ancillary directions, including a direction to a legal practitioner to provide to the Court or a party to the proceeding a bill of costs in assessable form.'
Case: Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455
Outcome: cited
The power of the Court to award costs under s 43 of the Federal Court Act is adequate to support orders against non-parties to the litigation. Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 so held with respect to the like general discretion conferred upon the Supreme Court of Queensland by O 91 r 1 of its Rules. The power does not bring with it an unfettered discretion. It 'must be exercised judicially and in accordance with general legal principles pertaining to the law of costs' Knight at 192 (Mason CJ and Deane J, Gaudron J agreeing at 205) quoting Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462 (Lambert J).
Case: Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678
Outcome: cited
The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).
Case: Etna v Arif (1992) 2 VR 353
Outcome: cited
The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).
Case: Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11
Outcome: cited
The power to award costs against a non-party may be exercised against a legal practitioner acting for a party in the proceedings. There are authorities which indicate that the power to make such an order is an aspect of a power of the Court to discipline legal practitioners conducting proceedings before it. In a recent judgment in the New South Wales Court of Appeal, Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300, McColl JA cited, in support of that proposition, House of Lords and Privy Council authorities Myers v Elman [1940] AC 282 at 318; Medcalf v Mardell [2002] UKHL 27 ; [2003] 1 AC 120 at 143 and Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 703. Similar observations appear in the Victorian Court of Appeal in Etna v Arif [1999] VSCA 99 ; (1999) 2 VR 353 at 379 and in the Queensland Court of Appeal in Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2004] 2 Qd R 11 at 16, cited with approval in Martinovic v Chief Executive Queensland Transport [2005] 1 Qd R 502 at 512. As her Honour also observed, however, Mason CJ and Deane J in Knight said it was artificial to attribute orders for costs against solicitors in the exercise of a court's inherent jurisdiction to an exercise of the disciplinary power rather than the power to award costs (188). In Lemoto, it may be noted, the Court was considering the application of Pt 11, Div 5C of the Legal Profession Act 1987 (NSW) introduced by the Civil Liability Act 2002 as part of a package of measures designed to reduce the costs of claims for damages (327). A practitioner is not to provide legal services on a claim or defence of a claim for damages unless he or she reasonably believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success (s 198J). Where that duty is breached, a costs order may be made against the solicitor or barrister personally (s 198M). In its statutory setting the power thus conferred on the Court might easily be seen as disciplinary. Even so it represents, as McColl JA observed, '... a departure from the historical basis upon which legal practitioners could be exposed to personal costs orders' (328). The Act imposes '... a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer' De Georgiou v Dunn (No 2) (2005) 62 NSWLR 285 at 292 (Barrett J).