mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1969] 1 All ER 700
Outcome: referred to
In Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625, Walton J considered the meaning of the expression "absolutely entitled as against the trustee" under the predecessor of s 46(1), namely, s 22(5) of the Finance Act 1965 (UK). His Lordship said (at 637): Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. Reference may also be made to Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1969] 1 All ER 700 at 704 and [1970] 1 All ER 381 at 383-384 (per Lord Denning MR), and Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. In Herdegen , Gummow J distinguished between "active" and "passive" trusts, and said of a "bare" trust: Today the usually accepted meaning of "bare" trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. The beneficiary may of course hold the equitable interest upon a sub-trust for others or himself and others ...
Case: Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1970] 1 All ER 381
Outcome: referred to
In Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625, Walton J considered the meaning of the expression "absolutely entitled as against the trustee" under the predecessor of s 46(1), namely, s 22(5) of the Finance Act 1965 (UK). His Lordship said (at 637): Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. Reference may also be made to Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1969] 1 All ER 700 at 704 and [1970] 1 All ER 381 at 383-384 (per Lord Denning MR), and Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. In Herdegen , Gummow J distinguished between "active" and "passive" trusts, and said of a "bare" trust: Today the usually accepted meaning of "bare" trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. The beneficiary may of course hold the equitable interest upon a sub-trust for others or himself and others ...
Case: South Pacific Hotels Pty Ltd v Trainor [2005] FCAFC 130 ; (2005) 144 FCR 402 at [19]
Outcome: cited
Assuming for the moment that alteration of the Birth Register is a "service", s 22(1) on its face would clearly apply to the Registrar's refusal in this case since it expressly refers to discrimination on the grounds of marital status (s 22(2) provides that the section binds the Crown in right of a State). However, the operation of s 22(1) is limited by s 9. Section 9(4) provides that the prescribed provisions of Pt II (which include s 22) "have effect as provided by ... the following provisions of this section and not otherwise." The following provisions of s 9 include subsection (10) which refers to "the Convention", earlier identified in s 4 as the " Convention on the Elimination of All Forms of Discrimination Against Women ". Section 9(10) provides: "If the Convention is in force in relation to Australia [which is in fact the case] the prescribed provisions of Pt II [i.e. including s 22] ... have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention." The purpose of s 9 is to ensure that the prescribed provisions have effect in relation to matters falling within the scope of the legislative powers of the Commonwealth: South Pacific Hotels Pty Ltd v Trainor [2005] FCAFC 130 ; (2005) 144 FCR 402 at [19] . Other subsections of s 9 will give effect to prescribed provisions such as s 22 in particular circumstances coming within Commonwealth power, for example when there is discrimination by a trading or financial corporation on the ground of a person's marital status: s 9(11). 16 The issues raised by the present application therefore are: (i) Whether, having regard to s 9(4) and (10) of the Sex Discrimination Act , s 22 of the Act applies at all to the Registrar's conduct; and (ii) If it does, whether the Registrar's conduct constituted refusing to provide a service.
Case: Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]
Outcome: cited
Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges: cf Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]. The Convention, being an international instrument, does not apply of its own force as part of Australian domestic law enforceable in Australian courts: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29, cited in Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239. The terms of the Convention do not directly prohibit or mandate conduct by individuals. By the Convention States Parties undertake to take measures, including legislative measures, which will help to eliminate discrimination against women. For example, by Article 2(b) "States Parties ... undertake: (a) ... (b) To adopt legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women."
Case: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29
Outcome: cited
Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges: cf Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]. The Convention, being an international instrument, does not apply of its own force as part of Australian domestic law enforceable in Australian courts: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29, cited in Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239. The terms of the Convention do not directly prohibit or mandate conduct by individuals. By the Convention States Parties undertake to take measures, including legislative measures, which will help to eliminate discrimination against women. For example, by Article 2(b) "States Parties ... undertake: (a) ... (b) To adopt legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women."
Case: Richardson v Forestry Commission [1988] HCA 10 ; (1988) 164 CLR 261 at 295-296
Outcome: cited
The present case is not concerned with the Constitutional validity of s 22. The question is not whether Parliament has made a legislative judgment that a treaty obligation exists, in which case it is enough that " the legislative judgment could reasonably be made " ( Richardson v Forestry Commission [1988] HCA 10 ; (1988) 164 CLR 261 at 295-296). Rather, as Ms Mortimer SC for the Registrar submitted, Parliament has made the legislative judgment. It is expressed in ss 9(4) and (10), and s 22. The Court must construe the language of those provisions. There must be an examination of the Convention to ascertain to what Australia has undertaken to give effect by way of legislation. 20 At the outset the Preamble notes that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person " and in the equal rights of men and women ". It also notes that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination, that all human beings are born free and equal, and that everyone is entitled to all the rights and freedoms set forth in the Declaration, " without discrimination of any kind, including distinction based on sex ". 21 The Preamble then notes that States Parties to the International Covenants on Human Rights have the obligation to ensure " the equal right of men and women " to enjoy all economic, social, cultural, civil and political rights.
Case: IW v City of Perth (1997 [1997] HCA 30 ; 191 CLR 1
Outcome: distinguished
Both arguments seem to me to introduce an unnecessary degree of subtlety into a simple process. The arguments apparently proceeded from a perceived need to accord with what some members of the High Court said in IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1. But that case dealt with a town planning decision, an administrative decision of a very different nature. 65 "Service" involves an "act of helpful activity" or "the supplying of any ... activities ... required or demanded" (Macquarie Dictionary) or "the action of serving, helping, or benefiting, conduct tending to the welfare or advantage of another" (Shorter Oxford Dictionary). Altering the Birth Register was an activity. The applicant requested the Registrar to perform that activity. The carrying out of that activity would have conferred a benefit on the applicant. The Registrar, because of the terms of the BDM Act, declined the request to carry out that activity. This was the refusal of a service. 66 An activity carried out by a government official can none the less be one which confers a benefit on an individual. Much of governmental activity today involves the conferring of benefits on individuals. The BDM Act itself recognises this. For example the Registrar may enter into an arrangement for the provision of "additional services" (s 51) and the Governor in Council may make regulation prescribing fees with respect to searches etc and "other services provided by the Registrar" (s 59(1)(a)(iv)).
Case: Bischof v Adams [1992] 2 VR 198
Outcome: followed
first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364
Outcome: cited
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 , delivered 5 September 2008, the background facts to the proceedings are described in detail. In that judgment I ordered that the amended application filed by the applicants on 16 February 2006 be dismissed, and that the cross-claim filed by the first and second respondents on 5 June 2007 be allowed. Subsequently in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 , delivered 17 October 2008, I ordered that, with the exception of a number of costs incurred by the applicants in relation to interlocutory applications, the applicants pay the costs of the first and second respondents, such costs to be taxed if not otherwise agreed. In so ordering I rejected the claim of the first and second respondents that their costs be paid by the applicants on an indemnity basis. It became clear during the primary proceedings that, when considering the history of events culminating in the proceedings and all matters concerning the applicants, the second applicant played a pivotal role. All decisions, all discussions, and all negotiations were made, had and conducted by the second applicant on his own behalf and on behalf of the first and third applicants. The position is clouded by the assignment of causes of action, an issue to which I will return shortly, however prima facie the actual authority to make all decisions with respect to the conduct of litigation in the primary proceedings remained with the second applicant because of his historical role and his position as sole director and shareholder of the first applicant, and the sole director of the third applicant. Indeed as I found in the primary judgment, the second applicant was, at all material times, the directing mind and will of the first and third applicants ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [9] ). In light of these findings, was the role of Mrs Tracy such that an award of costs with respect to these proceedings should be made against her?
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556
Outcome: cited
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 , delivered 5 September 2008, the background facts to the proceedings are described in detail. In that judgment I ordered that the amended application filed by the applicants on 16 February 2006 be dismissed, and that the cross-claim filed by the first and second respondents on 5 June 2007 be allowed. Subsequently in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 , delivered 17 October 2008, I ordered that, with the exception of a number of costs incurred by the applicants in relation to interlocutory applications, the applicants pay the costs of the first and second respondents, such costs to be taxed if not otherwise agreed. In so ordering I rejected the claim of the first and second respondents that their costs be paid by the applicants on an indemnity basis. In conclusion, I note that even had I been prepared to exercise my discretion so as to order non-party costs against Mrs Tracy, I would not have been prepared to order costs against her on an indemnity basis. In Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 I ordered the applicants to pay the costs of the first and second respondents on a standard basis, for the reasons I explained in that judgment. I need not repeat those reasons here. No satisfactory reasons have been provided by the first and second respondents in relation to Mrs Tracy to distinguish her circumstances from those of the applicants, so as to warrant a departure from the usual approach of the Court to order costs payable on a party-party basis. The appropriate order in this case is that the notice of motion be dismissed. I will now hear submissions as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 May 2009 Counsel for the First, Second and Third Applicants: Mr CD Coulsen Solicitor for the First, Second and Third Applicants: Lynch Morgan Counsel for the First, Second and Third Respondents: Mr J Bell QC and Mr PP McQuade Solicitor for the First, Second and Third Respondents: McCullough Robertson Date of Hearing: 2 February 2009 Date of Judgment: 15 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/498.html
Case: Condliffe v Hislop [1996] 1 WLR 753
Outcome: cited
and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.
Case: Cooper v Maxwell [1992] CA Transcript 273
Outcome: cited
circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).
Case: Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807
Outcome: cited
note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204.
Case: Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601
Outcome: cited
circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight First, Mrs Tracy was never a director or shareholder of either the first or third applicants. In light of the dominant role played by the second applicant in the affairs of all applicants and the clear professional and financial stake of the second applicant in the businesses of the first and third applicants particularly as director and shareholder, it is clear that the failure of the proceedings would have had a much greater impact on the fortunes of the second applicant than on those of Mrs Tracy. I consider that it is likely that any financial support provided by Mrs Tracy to the applicants' case was motivated by Mrs Tracy's natural affection for the second applicant (cf Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609) rather than any financial interest she may have had in the outcome of the proceedings. In my view this is an important distinction between the supportive role played by Mrs Tracy of the applicants, and the motivation of such entities as the third party in Gore (2002) 119 FCR 429. Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).
Case: Kebaro Pty Ltd v Saunders [2003] FCAFC 5
Outcome: followed
as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following:
Case: Kennon v Spry [2008] HCA 56 ; (2008) 251 ALR 257
Outcome: cited
in relation to the factor articulated by Lander J in Vestris v Cashman (1998) 72 SASR 449 concerning whether Mrs Tracy could have been joined as a party earlier in the proceedings I note that, in fact, the first and second respondents had earlier claimed that Mrs Tracy's company Janling Pty Ltd had no place in these proceedings. It seems somewhat odd to now claim that Mrs Tracy should bear the costs of the unsuccessful claims of the applicants.