mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Attorney-General NSW v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: referred to
The appellant complained that the Tribunal had failed genuinely to assess evidence favourable to him when it questioned the fact that the appellant raised substantial new claims at the hearing, and, in rejecting his claims, had made an unfair decision. The Federal Magistrate noted that s 420 of the Act provided that, in carrying out its functions, the Tribunal was to pursue the objective of providing a mechanism for review that was fair, just, economical, informed and quick. The Federal Magistrate referred to the observations of Brennan J in Attorney-General NSW v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 and concluded that no breach of ss 420 or 425 of the Act had occurred. 12 The appellant complained that the Tribunal failed to comply with its obligations under s 424A(1) by failing to give the appellant particulars of information, failing to ensure that the appellant understood that it would be relevant to his review application and failing to give the appellant the opportunity to comment on the information. The Federal Magistrate found that the appellant had been given an opportunity to comment on the information at the hearing. The issue of the [appellant's] credibility "was squarely before the appellant, or should have been," and that the appellant should not have been taken by surprise that his application was not accepted. The Tribunal was not satisfied as to the appellant's credibility or the credibility of his account. That finding was open to the Tribunal. 13 The Federal Magistrate was unable to find any other arguable case for jurisdictional error and dismissed the application.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719
Outcome: cited
In the course of the trial I rejected some opinion evidence tendered on behalf of Cadbury about consumer behaviour: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 (the evidence ruling). Subsequently I gave judgment dismissing Cadbury's substantive claim: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 (the trial judgment). Cadbury appealed to the Full Court, which held that the evidence was wrongly rejected, set aside my judgment and remitted the matter to me for further hearing: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 72 IPR 261 (the first Full Court judgment).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 72 IPR 261
Outcome: cited
In the course of the trial I rejected some opinion evidence tendered on behalf of Cadbury about consumer behaviour: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 (the evidence ruling). Subsequently I gave judgment dismissing Cadbury's substantive claim: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 (the trial judgment). Cadbury appealed to the Full Court, which held that the evidence was wrongly rejected, set aside my judgment and remitted the matter to me for further hearing: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 72 IPR 261 (the first Full Court judgment).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102
Outcome: cited
Subsequently Cadbury brought a motion before the same Full Court asking that its previous order be varied and that the matter be remitted for a new trial, that is to say a hearing de novo . The Full Court dismissed the motion: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102 (the second Full Court judgment). 5 Cadbury then brought a motion seeking an order that I excuse myself from further hearing the matter on the ground of apprehended bias. The application was based on what I said in the course of the evidence ruling and the trial judgment. I dismissed the motion and stated that I would give my reasons later. Those reasons are as follows. 6 In the evidence ruling I was primarily concerned with the proffered evidence of Dr Brian Gibbs, Associate Professor of Marketing and Behavioural Science in the Melbourne Business School, although there were two other witnesses from Cadbury who would have given similar or related opinions and a Darrell Lea witness who would have given opinion evidence of the same kind but to opposite effect.
Case: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
Outcome: cited
In their letter of 15 March 2006, which was headed "without prejudice save as to costs", the solicitors for Mr Rambaldi and Irlmond made an offer to resolve the proceeding and invoked Calderbank v Calderbank [1975] 3 All ER 333 (" Calderbank "). Under the Calderbank principle, costs may be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive at 233 per Sheppard J. A party may rely on a Calderbank offer notwithstanding that the party has not complied with the procedure set out in O 23 of the Federal Court Rules : see, for example, Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 at 101 per Spender J; Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at 124-125 per Weinberg J; and Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184 per Heerey J.
Case: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618
Outcome: cited
Mr Rambaldi's submissions did not specifically invoke the principle in Calderbank . There may be a number of reasons for this. First, it may be that the offer did not amount to a genuine offer of compromise. The offer, which was stated to be open until noon on 16 March 2006, was made on the basis that Mr Spalla discontinue the proceeding as against Mr Rambaldi and Irlmond and provide full releases to them; that he also make appropriate arrangements with the first to eighth respondents (as they then were) to discontinue; that Mr Spalla, Mr Rambaldi and Irlmond each bear their own costs of the proceeding; and that there be no order as to costs including no order as to any reserved costs. In Vasram v AMP Life Limited [2002] FCA 1286 , Stone J held (at [12]) that where a respondent invited an applicant to discontinue with no order being made as to costs, the invitation could not be regarded as a Calderbank offer: see also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 at [59]-[60] per Hill J. In any event, even if the offer was in the nature of a Calderbank offer, the rejection of the offer would be only one factor to be taken into account in the Court's exercise of discretion. Further, in order for there to be an indemnity costs order, the respondents would need to show that Mr Spalla's rejection of their offer was so unreasonable as to justify indemnity costs: see, for example, Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. As I have said, Mr Rambaldi did not seek to rely on the Calderbank principle and to discharge this onus.
Case: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177
Outcome: cited
In Colgate-Palmolive , Sheppard J set out some relevant principles (at 232-235) concerning indemnity costs and referred to some of the circumstances in which courts have ordered that costs be paid on an indemnity basis. These circumstances included "the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud", "evidence of particular misconduct that causes loss of time to the Court and to other parties", "the fact that the proceedings were commenced ... in wilful disregard of known facts or clearly established law", and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions": see also Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401 per Woodward J and Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178 per Woodward J. In Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44, the Court made an order for indemnity costs against the applicants' solicitors in a representative action upon the ground that the proceeding was not only untenable but "brought irresponsibly without any, or any proper, consideration of the question whether it had any prospect of success": see [66] per Lindgren J.
Case: Bhagat v Global Custodians Ltd [2002] FCAFC 51
Outcome: cited
I would, however, accede to the submission made by the Deloitte parties that Mr Spalla should pay indemnity costs in respect of the first four days of the hearing. From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ and Ogawa v The University of Melbourne (No 2 ) [2004] FCA 1275 per Kenny J. In any event, as the Deloitte parties noted, the conduct relied upon in support of the application for indemnity costs in respect of the first four days of the hearing occurred while Mr Spalla was represented by counsel. I note that Mr Rambaldi also relied on this conduct in support of his costs application.
Case: Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Outcome: referred to
On the one hand, litigants in person, even if partially assisted by lawyers, often produce significant difficulties and unnecessary expense for the parties against whom they proceed: see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ in Eq. These difficulties arise from their lack of knowledge of the law, unfamiliarity with court practice and, sometimes, lack of objectivity and want of lawyerly skills in reading and writing. Mr Spalla suffers, to some degree, from the disabilities of most self-represented litigants. There may be other factors too that compound a self-represented litigant's inability to utilise court procedures appropriately. On the other hand, a person's capacity to gain redress for legal wrongs in the courts should not depend on his or her ability to pay for legal representation. In seeking to balance these considerations, the courts have been generally more reluctant to make orders for indemnity costs against self-represented litigants than against legally represented litigants.
Case: Calderbank v Calderbank [1975] 3 All ER 333
Outcome: discussed
In their letter of 15 March 2006, which was headed "without prejudice save as to costs", the solicitors for Mr Rambaldi and Irlmond made an offer to resolve the proceeding and invoked Calderbank v Calderbank [1975] 3 All ER 333 (" Calderbank "). Under the Calderbank principle, costs may be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive at 233 per Sheppard J. A party may rely on a Calderbank offer notwithstanding that the party has not complied with the procedure set out in O 23 of the Federal Court Rules : see, for example, Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 at 101 per Spender J; Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at 124-125 per Weinberg J; and Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184 per Heerey J. 25 Mr Rambaldi's submissions did not specifically invoke the principle in Calderbank . There may be a number of reasons for this. First, it may be that the offer did not amount to a genuine offer of compromise. The offer, which was stated to be open until noon on 16 March 2006, was made on the basis that Mr Spalla discontinue the proceeding as against Mr Rambaldi and Irlmond and provide full releases to them; that he also make appropriate arrangements with the first to eighth respondents (as they then were) to discontinue; that Mr Spalla, Mr Rambaldi and Irlmond each bear their own costs of the proceeding; and that there be no order as to costs including no order as to any reserved costs. In Vasram v AMP Life Limited [2002] FCA 1286 , Stone J held (at [12]) that where a respondent invited an applicant to discontinue with no order being made as to costs, the invitation could not be regarded as a Calderbank offer: see also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 at [59]-[60] per Hill J. In any event, even if the offer was in the nature of a Calderbank offer, the rejection of the offer would be only one factor to be taken into account in the Court's exercise of discretion. Further, in order for there to be an indemnity costs order, the respondents would need to show that Mr Spalla's rejection of their offer was so unreasonable as to justify indemnity costs: see, for example, Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. As I have said, Mr Rambaldi did not seek to rely on the Calderbank principle and to discharge this onus.
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: discussed
The power of the Court to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). Costs ordinarily follow the event (that is, the successful party receives costs) and are awarded on a party and party basis, unless there are particular or special circumstances that warrant the Court departing from this practice and making some other order: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 232-233 per Sheppard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. 17 In Colgate-Palmolive , Sheppard J set out some relevant principles (at 232-235) concerning indemnity costs and referred to some of the circumstances in which courts have ordered that costs be paid on an indemnity basis. These circumstances included "the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud", "evidence of particular misconduct that causes loss of time to the Court and to other parties", "the fact that the proceedings were commenced ... in wilful disregard of known facts or clearly established law", and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions": see also Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401 per Woodward J and Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178 per Woodward J. In Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44, the Court made an order for indemnity costs against the applicants' solicitors in a representative action upon the ground that the proceeding was not only untenable but "brought irresponsibly without any, or any proper, consideration of the question whether it had any prospect of success": see [66] per Lindgren J. 24 In their letter of 15 March 2006, which was headed "without prejudice save as to costs", the solicitors for Mr Rambaldi and Irlmond made an offer to resolve the proceeding and invoked Calderbank v Calderbank [1975] 3 All ER 333 (" Calderbank "). Under the Calderbank principle, costs may be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive at 233 per Sheppard J. A party may rely on a Calderbank offer notwithstanding that the party has not complied with the procedure set out in O 23 of the Federal Court Rules : see, for example, Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 at 101 per Spender J; Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at 124-125 per Weinberg J; and Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184 per Heerey J.
Case: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44
Outcome: cited
In Colgate-Palmolive , Sheppard J set out some relevant principles (at 232-235) concerning indemnity costs and referred to some of the circumstances in which courts have ordered that costs be paid on an indemnity basis. These circumstances included "the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud", "evidence of particular misconduct that causes loss of time to the Court and to other parties", "the fact that the proceedings were commenced ... in wilful disregard of known facts or clearly established law", and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions": see also Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401 per Woodward J and Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178 per Woodward J. In Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44, the Court made an order for indemnity costs against the applicants' solicitors in a representative action upon the ground that the proceeding was not only untenable but "brought irresponsibly without any, or any proper, consideration of the question whether it had any prospect of success": see [66] per Lindgren J.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: cited
In Colgate-Palmolive , Sheppard J set out some relevant principles (at 232-235) concerning indemnity costs and referred to some of the circumstances in which courts have ordered that costs be paid on an indemnity basis. These circumstances included "the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud", "evidence of particular misconduct that causes loss of time to the Court and to other parties", "the fact that the proceedings were commenced ... in wilful disregard of known facts or clearly established law", and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions": see also Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400-401 per Woodward J and Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178 per Woodward J. In Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44, the Court made an order for indemnity costs against the applicants' solicitors in a representative action upon the ground that the proceeding was not only untenable but "brought irresponsibly without any, or any proper, consideration of the question whether it had any prospect of success": see [66] per Lindgren J.
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: cited
The rationale for an indemnity costs order can be variously stated. In Hamod v New South Wales (2002) 188 ALR 659 at [20], Gray J, with whom Carr and Goldberg JJ agreed, said: "Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."
Case: Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184
Outcome: cited
In their letter of 15 March 2006, which was headed "without prejudice save as to costs", the solicitors for Mr Rambaldi and Irlmond made an offer to resolve the proceeding and invoked Calderbank v Calderbank [1975] 3 All ER 333 (" Calderbank "). Under the Calderbank principle, costs may be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive at 233 per Sheppard J. A party may rely on a Calderbank offer notwithstanding that the party has not complied with the procedure set out in O 23 of the Federal Court Rules : see, for example, Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 at 101 per Spender J; Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 at 124-125 per Weinberg J; and Henderson v Amadio Pty Ltd (No 3) [1996] FCA 184 per Heerey J.
Case: Ogawa v The University of Melbourne (No 2 ) [2004] FCA 1275
Outcome: cited
I would, however, accede to the submission made by the Deloitte parties that Mr Spalla should pay indemnity costs in respect of the first four days of the hearing. From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ and Ogawa v The University of Melbourne (No 2 ) [2004] FCA 1275 per Kenny J. In any event, as the Deloitte parties noted, the conduct relied upon in support of the application for indemnity costs in respect of the first four days of the hearing occurred while Mr Spalla was represented by counsel. I note that Mr Rambaldi also relied on this conduct in support of his costs application.
Case: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281
Outcome: cited
Mr Rambaldi's submissions did not specifically invoke the principle in Calderbank . There may be a number of reasons for this. First, it may be that the offer did not amount to a genuine offer of compromise. The offer, which was stated to be open until noon on 16 March 2006, was made on the basis that Mr Spalla discontinue the proceeding as against Mr Rambaldi and Irlmond and provide full releases to them; that he also make appropriate arrangements with the first to eighth respondents (as they then were) to discontinue; that Mr Spalla, Mr Rambaldi and Irlmond each bear their own costs of the proceeding; and that there be no order as to costs including no order as to any reserved costs. In Vasram v AMP Life Limited [2002] FCA 1286 , Stone J held (at [12]) that where a respondent invited an applicant to discontinue with no order being made as to costs, the invitation could not be regarded as a Calderbank offer: see also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 at [59]-[60] per Hill J. In any event, even if the offer was in the nature of a Calderbank offer, the rejection of the offer would be only one factor to be taken into account in the Court's exercise of discretion. Further, in order for there to be an indemnity costs order, the respondents would need to show that Mr Spalla's rejection of their offer was so unreasonable as to justify indemnity costs: see, for example, Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. As I have said, Mr Rambaldi did not seek to rely on the Calderbank principle and to discharge this onus.
Case: Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
The power of the Court to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). Costs ordinarily follow the event (that is, the successful party receives costs) and are awarded on a party and party basis, unless there are particular or special circumstances that warrant the Court departing from this practice and making some other order: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 232-233 per Sheppard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J.