mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZDFW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821
Outcome: referred to
On 6 February 2006 the respondent's application came on for hearing before a Federal Magistrate and he made the orders which I have set out above. The Magistrate said that the applicant's application challenges the delegate's decision and he said that it was doomed to fail because the decision of the delegate was subsumed in the decision of the Tribunal. 3 I do not think that the applicant's proposed appeal enjoys any prospect of success. This case is similar to the case which came before Wilcox J in SZDFW v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821. The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344). The Federal Magistrate found that the decision of the Tribunal was in no way affected by jurisdictional error and a judge of this court refused leave to appeal against that decision. 4 The delegate's decision is now of no significance having regard to the fact that it was reviewed by the Tribunal. The application for leave to appeal is dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2006 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms E Knight Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 May 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/663.html
Case: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344
Outcome: referred to
On 6 February 2006 the respondent's application came on for hearing before a Federal Magistrate and he made the orders which I have set out above. The Magistrate said that the applicant's application challenges the delegate's decision and he said that it was doomed to fail because the decision of the delegate was subsumed in the decision of the Tribunal. 3 I do not think that the applicant's proposed appeal enjoys any prospect of success. This case is similar to the case which came before Wilcox J in SZDFW v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1821. The Tribunal conducted a full merits review in relation to the decision of the delegate and the applicant was given every opportunity to present his case (see s 415 of the Migration Act 1958 (Cth), Zubair v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344). The Federal Magistrate found that the decision of the Tribunal was in no way affected by jurisdictional error and a judge of this court refused leave to appeal against that decision. 4 The delegate's decision is now of no significance having regard to the fact that it was reviewed by the Tribunal. The application for leave to appeal is dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 31 May 2006 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms E Knight Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 May 2006 Date of Judgment: 10 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/663.html
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: cited
Sections 5, 6 and 7 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) make provision for persons, who are aggrieved by decisions, by conduct engaged in for the purpose of making decisions or by the failure to make decisions, to apply for orders of review in respect thereof. In that context, Mason CJ, with whose reasons Brennan and Deane JJ relevantly agreed, said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-342: 'The distinction between reviewable decisions and conduct engaged for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. ... .... There is a clear distinction between a "decision" and "conduct" engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct". That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.' 47 In relation to the exercise by the Tribunal of its powers, s 36 of the SRC Act provided: '36. The Tribunal, in reviewing a decision or conduct: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) is to act as speedily as proper consideration of the review allows, having regard to: (i) the objectives laid down by section 11 [providing mechanisms for the conciliation of complaints; and if a complaint cannot be resolved by conciliation the review of the decision or conduct to which the complaint relates; that are fair, economical, informal and quick]; and (ii) if the complaint relates to a fund the interests of all the members of the fund; and (c) may inform itself of any matter relevant to the review in any way it thinks appropriate.'
Case: Retail Employees Superannuation Pty Limited v Crocker [2001] FCA 1330 ; (2001) 48 ATR 359
Outcome: cited
In considering the scope of a review by the Tribunal under ss 36-37 of the SRC Act Allsop J, as his Honour then was, said in Retail Employees Superannuation Pty Limited v Crocker [2001] FCA 1330 ; (2001) 48 ATR 359 ('Crocker') at [132]: '132 ... if the matters thrown up by events and circumstances, including correspondence from the member, do not properly raise anything beyond what was in fact decided by the Trustee, it is not appropriate for the tribunal, with a matter before it received by way of s 14 and under Pt 4 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), to take the opportunity to deal with other aspects of the relationship between the member and the Trustee foreign to the decision for review: see Hay v Briffa. ...' The last mentioned case was reported as Briffa v Hay (1997) 75 FCR 428. 92 Even if the Tribunal had power under s 37(1) and (3) of the SRC Act, when taken with s 25 of the 1990 Act and s49(1)(e) of the Trustee Act , to compromise a claim made by a former member in the position of the second respondent for the payment of a benefit greater than that for which the Rules provided, it would not, in my opinion, have been open to the Tribunal, exercising all the powers, obligations and discretions that are conferred on the Board, to compromise the relevant claim in a manner that would be contrary to s 37(5) of the SRC Act. Section 37(5) precludes the Tribunal from doing anything that would be contrary to the 'governing rules of the fund concerned' and those Rules fixed the amount of the second respondent's benefit in the amounts indicated in the letter of 14 January 2006 to which reference has been made. (See Rule B3.5.1 and see generally National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [10] - [12] and [15]-[16]; see also Crocker at [22]-[23] and [27]).
Case: Briffa v Hay (1997) 75 FCR 428
Outcome: referred to
In considering the scope of a review by the Tribunal under ss 36-37 of the SRC Act Allsop J, as his Honour then was, said in Retail Employees Superannuation Pty Limited v Crocker [2001] FCA 1330 ; (2001) 48 ATR 359 ('Crocker') at [132]: '132 ... if the matters thrown up by events and circumstances, including correspondence from the member, do not properly raise anything beyond what was in fact decided by the Trustee, it is not appropriate for the tribunal, with a matter before it received by way of s 14 and under Pt 4 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), to take the opportunity to deal with other aspects of the relationship between the member and the Trustee foreign to the decision for review: see Hay v Briffa. ...' The last mentioned case was reported as Briffa v Hay (1997) 75 FCR 428.
Case: In re Earl of Strafford, DECD; Royal Bank of Scotland Ltd v Byng [1980] 1 Ch 36
Outcome: referred to
The learned authors of Jacobs' Law of Trusts in Australia (7 th edition 2006) said in relation to the general nature of a trustee's power to compromise that it had been considered in England by the Court of Appeal in In re Earl of Strafford, DECD; Royal Bank of Scotland Ltd v Byng [1980] 1 Ch 36. It was said at [2048]: 'That case establishes that the power is not to be construed narrowly, nor restricted by considerations which do not clearly emerge from the statute conferring the power. In particular, it was held that, in compromising a claim adverse to the trust, the consent of the beneficiaries is not required.'
Case: Re Irismay Holdings Pty Ltd [1996] 1 QdR 172
Outcome: cited
In Re Irismay Holdings Pty Ltd [1996] 1 QdR 172 Lee J identified the matter before the Court as an application raising an important question concerning the powers of a trustee to compromise a dispute with a beneficiary relating to the beneficiary's entitlement to trust property under the trust deed. His Honour ended up considering the matter before him by reference to the power contained in s 44(f) of the Trusts Act 1973 (Qld) which was in substantially the same terms as s 49(1)(e) of the Trustee Act . At 174 Lee J said: 'At first blush it is difficult to see what limitations can be implied into the subsection which do not arise from the language itself. ... one hardly needs to cite authority for the proposition that expressions such as "claim or thing" and "relating to the trust or to the trust property" are of the widest import and should not be read down unless their context or other circumstances clearly require it. Later, at 175, his Honour said: '... Where the very subject matter of the dispute concerns the nature of a beneficiary's interest under the trust then it would seem eminently sensible to confer on the trustee power to settle that dispute provided that the compromise is entered into bona fide and for the benefit of the trust as a whole, an expression which no doubt encompasses the notion that the compromise is reached for the genuine purpose of settling the dispute and not merely as an expedient means of achieving some ulterior or extraneous agenda ... in other words the mere fact that a dispute has arisen and an agreement has been entered into is not enough; the agreement must relate to the resolution of the dispute before it can come within the power.'
Case: Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454
Outcome: cited
In Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 Nettle J took a somewhat more restrictive view of the breadth of s 19(1)(f) of the Trustee Act 1958 (Vic) being the comparable Victorian provision. That case concerned the efficacy of an agreement to compromise a probate proceeding in which the validity of a will was contested. The question was whether s 19(1)(f) authorised the executors to enter into the compromise in anticipation of a grant of probate. Nettle J reached the view that s 19(1)(f) did not authorise an executor to compromise a dispute as to the validity of a will without the consent of affected parties or an order of the Court that bound them. At [19] his Honour said: '19 Despite what has been said about the breadth of s 19(1)(f) I do not consider that s 19(1)(f) empowers an executor as such to compromise a probate proceeding in which the validity of the will is contested.' His Honour continued at [21]: '21 The word "claim" is capable in some contexts of including almost any sort of demand. Equally, according to context, the conception of things which relate to an estate may include a very broad range of possible subject matters. But it requires no recitation of authority to establish that the words of a statutory provision are to be read in context and according to the apparent purpose of the provision. And in their context and according to what I perceive to [be] the purpose of the s 19 of the Trustee Act , "claims relating to ... the estate" appear as limited to claims upon or against the estate. With respect, I think the observations of Sir Robert Megarry VC in Re Earl of Strafford to be persuasive. The section is concerned with claims against the estate be they from the outside world or as between the beneficiaries not proceedings to determine the title of the executor or trustee.' 91 It may be seen from the above that Nettle J took the view that the relevant section could lead to compromises of claims by the relevant trustees or against them.
Case: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562
Outcome: referred to
Even if the Tribunal had power under s 37(1) and (3) of the SRC Act, when taken with s 25 of the 1990 Act and s49(1)(e) of the Trustee Act , to compromise a claim made by a former member in the position of the second respondent for the payment of a benefit greater than that for which the Rules provided, it would not, in my opinion, have been open to the Tribunal, exercising all the powers, obligations and discretions that are conferred on the Board, to compromise the relevant claim in a manner that would be contrary to s 37(5) of the SRC Act. Section 37(5) precludes the Tribunal from doing anything that would be contrary to the 'governing rules of the fund concerned' and those Rules fixed the amount of the second respondent's benefit in the amounts indicated in the letter of 14 January 2006 to which reference has been made. (See Rule B3.5.1 and see generally National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [10] - [12] and [15]-[16]; see also Crocker at [22]-[23] and [27]).
Case: Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439
Outcome: referred to
Contrary to the submissions of the second respondent, I am satisfied that each of the questions of law identified in the Notice of Appeal were questions of law within the meaning of s 46(1) of the SRC Act (see Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439 at [24] et seq). 105 In my opinion, it was not open to the Tribunal to find that any decision of the Board in relation to the second respondent was unfair or unreasonable. 106 The directions which the Tribunal purported to give to the Board, upon the remission of the complaint, were beyond the power of the Tribunal. Neither the Board nor the Tribunal could provide for a benefit to be paid to the second respondent out of the PSS Fund which did not accord with the Rules and which contemplated calculations being made on the premise that the second respondent could require the date of termination of her employment as an Australian Public Servant to be notionally treated as a date other than that fixed by her employer.
Case: Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd [2008] FCAFC 199
Outcome: cited
has been made clear in many cases (recently, for example, in Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd [2008] FCAFC 199 at [69] ), the only limitation on the exercise of the Court's discretion as to costs is that the discretion be exercised judicially. Hearings of 8 December 2008 and 20 February 2009 In my view, Mrs Tracy in her submissions correctly summarises the position of the parties with respect to the filing of additional submissions, the hearings of 8 December 2008 and 20 February 2009, and the resultant costs incurred, particularly in respect of the hearing of 20 February 2009. As I indicated on 20 February 2009, Mrs Tracy was entitled to file written submissions by 6 February 2009 in relation to notice of motion as a whole. The history of why I had originally made orders simply anticipating an exchange of submissions on 6 February 2009 is set out in the transcript of the hearing of 20 February 2009 and I do not propose to repeat that history. While it is true that Mrs Tracy was late in filing the written submissions due by 6 February 2009 indeed the submissions were not filed until 10 February 2009 as I indicated on 20 February 2009 Mrs Tracy had not done anything wrong in filing those detailed written submissions. The confusion of the first and second respondents arose because Mrs Tracy's principal written submissions were filed late, and from what appeared to be the belief of the first and second respondents that the direction concerning the filing of any supplementary written submissions concerning a jurisdictional issue by 9 February 2009 limited the written submissions which the parties were entitled to file by 6 February 2009. I agree with Mrs Tracy that that was never the case. I do not accept the submission of the first and second respondents that costs connected with the hearings of 8 December 2008 and 20 February 2009 be costs on the motion. In my view the costs of those hearings should follow the event, and should be awarded to Mrs Tracy. Is Mrs Tracy entitled to indemnity costs?
Case: Australian Trade Commission v Disktravel [2000] FCA 62
Outcome: cited
first and second respondents have submitted that Mrs Tracy ought to pay their costs in respect of the jurisdictional issue. As recently observed, in the past the Full Court has cautioned against too ready a resort to apportionment according to issue based outcomes ( Emirates v Australian Competition and Consumer Commission (No 2) [2009] FCA 492 at [8], Australian Trade Commission v Disktravel [2000] FCA 62 at [3] ). Looking at the proceedings as a whole, the jurisdictional issue was a relatively minor aspect of the case, as was the question whether Mrs Tracy should be liable on an indemnity basis for costs of the first and second respondents. In my view, it is clear that the principal aspect of these proceedings concerned the question whether Mrs Tracy was in fact liable for non-party costs. Mrs Tracy was successful in respect of this principal issue and should, in my view, be entitled to a significant proportion of her costs. However, the facts that: Counsel for Mrs Tracy raised the jurisdictional issue at the hearing of the notice of motion without notice; which in turn necessitated further oral and written submissions by Counsel; and in the final analysis the first and second respondents were successful in respect of this issue; in my view justifies some apportionment of costs in favour of the first and second respondent. However I am not persuaded by the submission of the first and second respondents that Mrs Tracy should be entitled only to one third of her costs on the notice of motion. In light of the fact that Mrs Tracy was successful overall in these proceedings and taking into consideration the minor significance of the jurisdictional issue in the proceedings, I consider that the appropriate order is that Mrs Tracy's costs be discounted by 15%. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 3 June 2009 Solicitor for the Applicants: Mr P Lynch of Lynch Morgan Counsel for the Respondents: Mr PP McQuade Solicitor for the Respondents: McCullough Robertson Date of Hearing: 15 May 2009 Date of Judgment: 3 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/590.html
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556
Outcome: related
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 I discussed in some detail principles relevant to the award of indemnity costs by the Court in appropriate circumstances. A number of those key principles are: As I also observed in Citrus (No 8) [2008] FCA 1556 , a long and non-exhaustive list of relevant issues for the Court in considering whether to award indemnity costs can be found in such cases as Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498
Outcome: related
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 I dismissed a notice of motion filed by the first and second respondents to the substantive proceedings in which they sought an order for non-party costs against Mrs Adrienne Tracy, the wife of the second applicant to the substantive proceedings. At the time of delivery of judgment I made directions permitting the parties to make written submissions as to costs in respect of the notice of motion, to be filed by 4.00 pm on 29 May 2009, and which submissions I indicated I would take into consideration in making my decision as to costs. I made it clear at that time that final submissions (if any) were to be made by the parties in accordance with the directions. The parties understood that directions were made on that basis. The first and second respondents complied with those directions, and filed submissions on 29 May 2009. Mrs Tracy filed submissions last Monday, one business day late, however I do not consider that any prejudice is occasioned to the first and second respondents as a result of this late filing.
Case: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225
Outcome: cited
I also observed in Citrus (No 8) [2008] FCA 1556 , a long and non-exhaustive list of relevant issues for the Court in considering whether to award indemnity costs can be found in such cases as Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54.