mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dart Industries Inc v D&eacute;cor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101
Outcome: referred to
An account of profits is an alternative remedy to damages: see Patents Act 1990 , s 122(1). Its purpose is not to compensate the patentee, nor to punish the infringer, but rather to prevent the unjust enrichment of the infringer at the expense of the patentee: Dart Industries Inc v D&eacute;cor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 110-111. By reference to the judgment in Dart v D&eacute;cor [1993] HCA 54 ; 179 CLR 101 and the cases there cited, I have approached the calculation of the account of profits in this case on the following basis. The infringers should account for the actual profit that they have gained from the infringement. In calculating those profits, it is appropriate to deduct costs directly attributable to selling and delivering infringing articles from the revenue made from such sales and deliveries. It may be appropriate to deduct a proportion of general overhead costs such as plant, equipment and managerial costs. The deduction of such costs depends upon their being shown to have been attributable to the sales, the onus for which demonstration is upon the infringers. The account of profits is a discretionary remedy and the Court may decline to grant the remedy in respect of profits made by the infringer during the period in which it was unaware of the applicant's rights. In this latter respect, see in particular Colbeam Palmer v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 33-36 and the Patents Act 1990 , s 123 which is in the following terms: (1) A court may refuse to award damages, or to make an order for an account of profits, in respect of an infringement of a patent if the defendant satisfies the court that, at the date of the infringement, the defendant was not aware, and had no reason to believe, that a patent for the invention existed. (2) If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established. (3) Nothing in this section affects a court's power to grant relief by way of an injunction.
Case: Citron v Z&uuml;ndel (No 4) (2002) 41 CHRR D/274
Outcome: referred to
Further, one cannot ignore the public interest nature of the claim and the complete recognition by the Parliament of that type of claim and of the lack of wide international recognition of Australia's claim to the relevant part of Antarctica: see the majority of the Full Court reasons at [2006] FCAFC 116 ; 154 FCR 425 and [21] [24]; and see also Citron v Z&uuml;ndel (No 4) (2002) 41 CHRR D/274 at [298] [301]. 53 In the light of the reasons of the majority of the Full Court, I cannot conclude that the practical difficulty (if not impossibility) of enforcement is a reason to withhold relief. 54 On the material placed before the Court, I am satisfied that the respondent has contravened ss 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act in relation to Antarctic minke whales and fin whales by killing, injuring, taking and interfering with them and the treating and possessing of them and by injuring, interfering with and treating and possessing humpback whales and that, unless restrained, it will continue to kill, injure, take and interfere with them, and treat and possess them.
Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
Australia's claim to sovereignty over the Australian Antarctic Territory is recognised only by four nations (New Zealand, France, Norway and the United Kingdom), themselves with asserted (and otherwise disputed) claims over various parts of the Antarctic land mass. Japan rejects Australia's purported exercise of jurisdiction over waters that are considered by Japan to be the high seas. This is not a ground for invalidity of the EPBC Act: the sovereign claim by Australia to the Australian Antarctic Territory is not a matter capable of being questioned in this Court in this proceeding: cf Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1. These matters of sovereignty and international recognition (and lack of extensiveness thereof) can be taken to have been before, and well recognised by, Parliament when it enacted the EPBC Act.
Case: Simonton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: cited
The applicant submitted that a broad range of remedies are appropriate in attempting to enforce an order for contempt. In this regard, the applicant cited the case of Simonton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129, in particular [70] [74].
Case: Vincent v Peacock [1973] 1 NSWLR 466
Outcome: referred to
The question of futility can, however, also be seen from a perspective of disobedience. To do so requires the setting to one side of the refusal by Japan to recognise Australia's claim to Antarctica. It is not for this Court to question Australia's claim or Parliament's mandate in the EPBC Act, which is based on Australia's claim. Thus, this perspective can be seen to be relevant for this Court to take into account (even if from another perspective, for instance that of Japan, the perspective is flawed). So viewed, it (futility arising from disobedience and an inability to bring about obedience) may bring to mind what was said by Hardie, Hutley and Bowen JJA in Vincent v Peacock [1973] 1 NSWLR 466 at 468: In our opinion, it is not a ground for refusing an injunction that it would not have a practical effect, where its failure to have a practical effect is because the defendant disobeys it.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001
Outcome: related
The following issues do not appear to be in contention: 1. The applicants in their written submissions conceded the general principle that costs follow the event, and that subject to consideration of a number of issues the applicants are not in a position to argue against an order that they pay the respondents' costs in these proceedings, including reserved costs. 2. On 4 August 2006 I made orders determining two notices of motion, one brought by each party, concerning further disclosure ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001). Each party had success on its motion. I reserved the costs of both notices of motion, and the applicants submit that no costs order should be made on either notice of motion. This approach is not contested by the respondents, and I propose to adopt it. 3. In relation to the hearings of 6 and 9 November 2006: &#8226; On 6 November 2006 I made directions to facilitate the bringing of an application for security for costs by the respondents, and reserved the costs of that directions hearing. &#8226; On 9 November 2006 I dismissed the application for security for costs brought by the respondents, and ordered that costs be reserved: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498. &#8226; The applicants submitted that the security for costs application was a discrete application lost by the respondents and that they should have the costs of the directions hearing on 6 November and the costs of the application for security for costs having regard to the order of 9 November 2006. This submission is not contested by the respondents in their written submissions. I accept the submissions of the applicants and order that the costs of the applicants of the hearings of 6 November 2006 and 9 November 2006 be paid by the first and second respondents on a party to party basis. 4. In their written submissions the applicants also conceded that they were not in a position to resist an order that they pay the respondents' costs for the remaining interlocutory hearings, with the exception of costs associated with orders made on 18 July 2006 and 21 July 2006. I will deal with these costs later in the judgment.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498
Outcome: related
The following issues do not appear to be in contention: 1. The applicants in their written submissions conceded the general principle that costs follow the event, and that subject to consideration of a number of issues the applicants are not in a position to argue against an order that they pay the respondents' costs in these proceedings, including reserved costs. 2. On 4 August 2006 I made orders determining two notices of motion, one brought by each party, concerning further disclosure ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001). Each party had success on its motion. I reserved the costs of both notices of motion, and the applicants submit that no costs order should be made on either notice of motion. This approach is not contested by the respondents, and I propose to adopt it. 3. In relation to the hearings of 6 and 9 November 2006: &#8226; On 6 November 2006 I made directions to facilitate the bringing of an application for security for costs by the respondents, and reserved the costs of that directions hearing. &#8226; On 9 November 2006 I dismissed the application for security for costs brought by the respondents, and ordered that costs be reserved: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498. &#8226; The applicants submitted that the security for costs application was a discrete application lost by the respondents and that they should have the costs of the directions hearing on 6 November and the costs of the application for security for costs having regard to the order of 9 November 2006. This submission is not contested by the respondents in their written submissions. I accept the submissions of the applicants and order that the costs of the applicants of the hearings of 6 November 2006 and 9 November 2006 be paid by the first and second respondents on a party to party basis. 4. In their written submissions the applicants also conceded that they were not in a position to resist an order that they pay the respondents' costs for the remaining interlocutory hearings, with the exception of costs associated with orders made on 18 July 2006 and 21 July 2006. I will deal with these costs later in the judgment.
Case: De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77
Outcome: considered
Principles applicable to the award of indemnity costs have been considered on numerous occasions in this Court, including by the Full Court. As observed by the Full Court in De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77: [6] The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 ; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. [7] In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success...
Case: Derry v Peek (1889) 14 App Cas 337
Outcome: cited
Turning now to the case before me, I do not accept the submission of the applicants that in all matters in which a failure to disclose relevant information is alleged under s 52 of the Act there will be elements of impropriety and deceit. It is well settled that, unlike in relation to a claim of fraud ( Derry v Peek (1889) 14 App Cas 337), the intent of a representor is not relevant in the context of a s 52 claim (Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228, Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). Although as observed by Miller the courts have been more ready to find a breach of s 52 where an intention to mislead can be inferred (see cases cited in Miller RV, Miller's Annotated Trade Practices Act (28th ed, Thomson, 2007) at [1.52.35]), proof of an intent to deceive is not required under s 52.
Case: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
In relation to the claims of the applicants against the second respondent, Mr Strahley, I also consider that, on balance, the case did not exhibit special or unusual features warranting the Court exercising its discretion to award indemnity costs. While the applicants' claim against the second respondent for accessorial liability pursuant to s 75B of the Act failed at the threshold, and while I consider that the applicants' assertions against Mr Strahley with respect to his alleged attempts to destroy packing shed records were without foundation, nonetheless: 1. As a general proposition it is not uncommon in a claim for misleading or deceptive conduct against a corporation that a claim for accessorial liability against the managing director of that corporation will be commenced, as occurred in this case. 2. The applicants' case against Mr Strahley was intertwined with their case against the first respondent an inevitable approach in my view given Mr Strahley's position as managing director of the first respondent. 3. Although throughout the proceedings the applicants (in particular the second applicant) made what I consider to be unnecessarily dramatic and inaccurate declarations of impropriety on the part of the second respondent with respect to the alleged attempts of the second respondent to destroy records, these assertions were, although serious, not pleaded as part of the case the respondents had to meet. This point was also made by Counsel for the applicants during the proceedings (TS 17 July 2006 p 11 ll 8-13). 4. I do not consider that the applicants, in making assertions of impropriety against the second respondent, did so with an ulterior motive or in the knowledge that the assertions were false. 5. This is not a case where the applicants, although alleging accessorial liability, did not press their claims against the second respondent so as to warrant indemnity costs for failure to properly abandon the claims (cf Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602). 17 Accordingly, I am not persuaded that the circumstances warrant the costs of the second respondent being paid on an indemnity basis. 18 On 18 July 2006 I ordered that the trial of the substantive proceedings be adjourned until Friday 21 July 2006 at 10.15 am for further directions, and that costs be reserved.
Case: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1497
Outcome: cited
In their written submissions the respondents submitted that, for the proper attainment of justice and enforcing the respondents' rights in these proceedings, it was appropriate for the respondents to have: (a) retained and incurred the fees of both senior and junior counsel; (b) engaged and incurred the costs of the expert forensic accountant, Mr Lytras; (c) engaged and incurred costs of the expert valuer, Mr Harrison. These submissions are not disputed by the applicants. Indeed I note that both applicants and respondents retained senior counsel, and engaged experts to provide expert evidence including forensic and valuation evidence. However, whether these costs were incurred for the proper attainment of justice and enforcing the respondents' rights is, in default of agreement, a matter for the taxing officer under O 62 r 19 Federal Court Rules rather than this Court: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1497 at [2] . Issues requiring consideration 5 Three issues remain in dispute between the parties. These issues are: 1. The basis upon which the respondents' costs, payable by the applicants, should be assessed. The respondents have submitted that the applicants should be ordered to pay the costs of the respondents in the proceedings, including the cross-claim which was defended on the basis of the misrepresentation case, and including any reserved costs, on an indemnity basis. The applicants have submitted that these costs should be paid on the standard basis, namely party to party. 2. Liability for costs related to the orders of 18 July 2006 ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920) and the directions hearing of 21 July 2006. 3. Release of the cheque of $150,000 and bank guarantee of $75,000 provided by the first and third applicants as security for the respondents' costs.
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Outcome: cited
Turning now to the case before me, I do not accept the submission of the applicants that in all matters in which a failure to disclose relevant information is alleged under s 52 of the Act there will be elements of impropriety and deceit. It is well settled that, unlike in relation to a claim of fraud ( Derry v Peek (1889) 14 App Cas 337), the intent of a representor is not relevant in the context of a s 52 claim (Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228, Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). Although as observed by Miller the courts have been more ready to find a breach of s 52 where an intention to mislead can be inferred (see cases cited in Miller RV, Miller's Annotated Trade Practices Act (28th ed, Thomson, 2007) at [1.52.35]), proof of an intent to deceive is not required under s 52.
Case: Ian David Morwood v Chemdata Pty Ltd [1998] FCA 194
Outcome: cited
Notwithstanding this point however, I am not persuaded that the circumstances of this case are such as to warrant a departure from the usual practice of the Court in awarding costs so far as the costs of the first respondent are concerned. I form this view because: 1. I do not consider that this case exhibited special or unusual features so as to justify the court exercising its discretion in this way. 2. I accept the submission of the applicants that the case turned on factual findings, which in this case were against the applicants. To that extent I do not consider that the applicants' case against the first respondent was "hopeless" or had no chance of success. 3. I accept the submission of the applicants that their case was based on evidentiary or factual foundations, although as my judgment in the substantive case demonstrates, I was not persuaded by the applicants' submissions. 4. I consider that, as against the first respondent, the applicants, in particular the second applicant, had an honest belief in the soundness of their case (cf Ian David Morwood v Chemdata Pty Ltd [1998] FCA 194).
Case: InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Outcome: considered
In InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] , the Full Court noted additional categories of cases in which indemnity costs can be awarded as including: &#8226; where the bringing of an application is "high-handed"; &#8226; where an application has "no chance of success" or "hopeless"; &#8226; where an application is "unnecessary"; &#8226; where an application is brought and prosecuted "not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose"; &#8226; where there has been "some relevant delinquency on the part of the unsuccessful party"; and &#8226; where the justice of the case warrants such an order. 13 The categories of cases I have listed are not exhaustive. The Court may exercise its discretion to award indemnity costs in circumstances falling outside these categories where there are some special or unusual features in a case so as to justify the Court exercising its discretion in this way ( InterTAN Inc [2005] FCAFC 54 at [11] ).
Case: Latoudis v Casey [1990] HCA 59
Outcome: cited
Principles applicable to the award of indemnity costs have been considered on numerous occasions in this Court, including by the Full Court. As observed by the Full Court in De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77: [6] The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 ; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. [7] In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success...
Case: Ohn v Waltob (1995) 36 NSWLR 77
Outcome: cited
Principles applicable to the award of indemnity costs have been considered on numerous occasions in this Court, including by the Full Court. As observed by the Full Court in De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77: [6] The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 ; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. [7] In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success...
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
Turning now to the case before me, I do not accept the submission of the applicants that in all matters in which a failure to disclose relevant information is alleged under s 52 of the Act there will be elements of impropriety and deceit. It is well settled that, unlike in relation to a claim of fraud ( Derry v Peek (1889) 14 App Cas 337), the intent of a representor is not relevant in the context of a s 52 claim (Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228, Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). Although as observed by Miller the courts have been more ready to find a breach of s 52 where an intention to mislead can be inferred (see cases cited in Miller RV, Miller's Annotated Trade Practices Act (28th ed, Thomson, 2007) at [1.52.35]), proof of an intent to deceive is not required under s 52.