mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In the Marriage of Pavey (1976) 1 Fam LR11, 358
Outcome: discussed
The Tribunal discussed the scope of operation of the statutory notion of 'marital relationship' and concluded that whilst there are 'various criteria to consider, there is no hard and fast rule that must be complied with in deciding whether a "marital relationship" existed' . Initially the Trustee drew attention to two authorities of the early decades of the twentieth century which exemplified traditional notions of the matrimonial relationship, but moved promptly thereafter to the more contemporary analysis of juridical decisions of the last three decades, commencing with the discussion approvingly by Evatt CJ, Demack and Watson JJ, in the context of their joint judgment In the Marriage of Pavey (1976) 25 FLR 450, of what had been earlier said In the Marriage of Todd (No 2) (1976) 25 FLR 260 at 262 by Watson J as follows: 'In my view "separation" means more than physical separation it involves the destruction of the marital relationship... Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.' The foregoing sentence '[w]hat comprises the marital relationship for each couple will vary' was adopted by the Tribunal as reflective of 'a practical, commonsense point of view' . In that context of authority, the Tribunal thought that '[t]he Complainant and the Deceased Member, for their own purposes, over a period, fashioned a relationship that suited them and they may well have regarded it as the most appropriate marriage for them in all their circumstances' , the Tribunal adding the observation that ' [i]t is even quite arguable that it may have been a "marital relationship" at common law, which is what the Complainant's lawyers seem to have been submitting' . So much was described by the Tribunal however as not determinative of the issue presently arising, and understandably so, in the light of the critical words of s 8A, which at least include '... the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide basis '.
Case: Re Schlatter and Defence Force Retirement and Death Benefits Authority and Brown (1983-1986) 8 ALD 133
Outcome: discussed
The Tribunal next drew attention to the following dicta of the Administrative Appeals Tribunal (comprising Deputy President R A Layton and B C Lock and J T B Linn as members) in Re Schlatter and Defence Force Retirement and Death Benefits Authority and Brown (1985) 8 ALD 133 at 136, in a context of eligibility for defence force retirement pension and death benefits, where dependency was explained as 'a financial concept as distinct from an emotional concept...' . To similar effect in Commissioner for Superannuation v Scott (1987) 71 ALR 408, the notions of 'financial dependency', 'necessities of life' and 'lower order needs' were emphasised . Those authorities were apparently cited to the Tribunal by the Trustee for the propositions that the statutory notion of 'dependence' the subject of ss 8A and 8B of the Superannuation Act relates to financial support for 'necessities of life' or 'lower order needs' and that 'financial dependence' , in the situation of an applicant for relief meant being 'primarily, essentially or in the main dependent upon the person' . Moreover the words 'in the main' were said by the Tribunal to indicate that total dependence is not required, and further that the Tribunal indicated its expectation that so much would be less so for the notion of ' substantially dependent ' (the s 8A(4)(a) expression) than for financial dependence without qualification. As for the terms ' necessities of life ' and ' lower order needs ', the Tribunal considered on the other hand that the same should not be taken to mean ' bare necessities' , that is, the minimum needed to survive in indigent circumstances. Faull was said by the Tribunal to seemingly support the view in any event that a more reasonable interpretation should be adopted having regard to the person's station in life, and the Tribunal observed indeed in that context of its reasoning as follows: 'There is no suggestion from the evidence that the [appellant's] lifestyle was excessive, yet she appears to have been having some difficulties in meeting her normal expenditure without the financial support given by the [deceased].'
Case: Albarran v Theodorou [2006] NSWSC 9
Outcome: cited
instance of such " special " circumstances emerges where " it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success ": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401 per Woodward J. Conversely, such an order may be appropriate where a view can be formed that a Respondent has no reasonable prospect of resisting the claims being advanced by an Applicant: Albarran v Theodorou [2006] NSWSC 9. The plaintiff had there commenced proceedings to remove a lapsing notice concerning a caveat and Campbell J (as His Honour then was) observed: [5] Today, the lapsing notice has been withdrawn. [6] It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. [7] The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. [8] Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order. Another instance is where a so-called " Calderbank " offer of settlement has been made and rejected: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236 at 238 to 239 per Lindgren J.
Case: Australian Competition and Consumer Commission v AMV Holding Ltd [2009] FCA 605
Outcome: cited
31 August 2009 declarations of contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW) were made. On the day these declarations were sought, an outline of written submissions was provided by Counsel for the Applicant. Written reasons in support of the decision to grant declaratory relief were not sought by the parties. No written reasons have thus been published in support of the relief then granted. But, when granting the declaratory relief, the Court's attention was drawn to the observations of Reeves J in Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 at [18] to [21], [2008] ATPR 42-269 at 49,818 to 49,819 and the approach that should be taken before granting such relief. Reference was also made to the summary of the authorities by Moore J in Australian Competition and Consumer Commission v AMV Holding Ltd [2009] FCA 605.
Case: Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 , [2008] ATPR 42-269
Outcome: cited
31 August 2009 declarations of contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW) were made. On the day these declarations were sought, an outline of written submissions was provided by Counsel for the Applicant. Written reasons in support of the decision to grant declaratory relief were not sought by the parties. No written reasons have thus been published in support of the relief then granted. But, when granting the declaratory relief, the Court's attention was drawn to the observations of Reeves J in Australian Competition and Consumer Commission v Grove and Edgar Pty Ltd [2008] FCA 1956 at [18] to [21], [2008] ATPR 42-269 at 49,818 to 49,819 and the approach that should be taken before granting such relief. Reference was also made to the summary of the authorities by Moore J in Australian Competition and Consumer Commission v AMV Holding Ltd [2009] FCA 605. This was the approach pursued on 31 August 2009. Indeed, express reference was made during the course of that hearing to the observations of both Reeves J and Moore J. Whether such a hearing constitutes a hearing on the merits may be left to one side. The facts of the present proceeding were considered with sufficient care to ensure that the granting of declaratory and injunctive relief was appropriate. The present proceeding is thus not considered to be one where the Court has not sufficiently considered the merits of the claim sought to be litigated by an Applicant that it is not in a position to form a view as to prospects of success. Indeed, relief in the form of declarations and injunctions &#8212; albeit relief not opposed by the Respondents &#8212; would not have been granted in the absence of such a view being formed. The present proceeding is thus not one where it is appropriate to make no order as to costs. Neither any general principle nor the merits of the proceeding warrant such a conclusion. The Applicant commenced its proceeding and has been successful in obtaining significant relief. The fact that it has obtained that relief without the necessity for a fully contested hearing does not diminish the success it has obtained.
Case: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177
Outcome: applied
discretion, it has long been recognised, is unconfined but must nevertheless be exercised judicially: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748. Toohey J there stated at 48,136: Subsection 43(2) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is O. 62, r. 15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders". The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12. Similarly, in Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178, Woodward J accepted that the discretion, whilst "' absolute and unfettered' ... must be exercised judicially ".
Case: Collier Constructions Pty Limited v Foskett Pty Limited [1992] FCA 19 ; (1992) 33 FCR 591
Outcome: cited
Respondents sought to rely upon O 62 r 36A of the Federal Court Rules as a basis for further resisting or minimising the effect of any order for costs that may be made in favour of the Applicant, but this submission was subsequently abandoned. That Rule provides as follows: Reduction in costs otherwise allowable (1) Where a party is awarded judgment for less than $100,000 on a claim (not including a cross-claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders. (2) If the Court or a Judge is of the opinion that a proceeding (including a cross-claim for a money sum or damages) brought in this Court could more suitably have been brought in another court or in a tribunal and so declares, then any costs to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order. (3) This rule does not apply to a proceeding under the Admiralty Act 1988 . The operation of that Rule, however, is " triggered by a money judgment " for less than $100,000: Collier Constructions Pty Limited v Foskett Pty Limited [1992] FCA 19 ; (1992) 33 FCR 591 at 593 per French J (as His Honour then was). His Honour further stated that "[i]n my opinion, the operation of subr (1) is not triggered by the simple grant of final declaratory relief ". His Honour, as has subsequently been held, " said nothing about the situation ... where damages, declarations and injunctions were sought, but where the only final relied awarded ... is by way of a money judgment ": Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 at [14] . The Rule is not excluded where damages are sought together with declaratory or injunctive relief: Nokia Corporation v Liu [2009] FCA 20 at [32] , [2009] FCA 20 ; 80 IPR 286 at 298 per Jessup J. Rule 36A, it is considered, has no application where the only substantive relief that is granted is declaratory and injunctive relief and where any claim for monetary relief is not pursued.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397
Outcome: cited
instance of such " special " circumstances emerges where " it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success ": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401 per Woodward J. Conversely, such an order may be appropriate where a view can be formed that a Respondent has no reasonable prospect of resisting the claims being advanced by an Applicant: Albarran v Theodorou [2006] NSWSC 9. The plaintiff had there commenced proceedings to remove a lapsing notice concerning a caveat and Campbell J (as His Honour then was) observed: [5] Today, the lapsing notice has been withdrawn. [6] It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. [7] The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. [8] Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order. Another instance is where a so-called " Calderbank " offer of settlement has been made and rejected: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236 at 238 to 239 per Lindgren J.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: applied
discretion, it has long been recognised, is unconfined but must nevertheless be exercised judicially: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748. Toohey J there stated at 48,136: Subsection 43(2) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion. The only rule to which reference is necessary is O. 62, r. 15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders". The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12. Similarly, in Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177 at 178, Woodward J accepted that the discretion, whilst "' absolute and unfettered' ... must be exercised judicially ".
Case: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236
Outcome: cited
instance of such " special " circumstances emerges where " it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success ": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1988) 81 ALR 397 at 401 per Woodward J. Conversely, such an order may be appropriate where a view can be formed that a Respondent has no reasonable prospect of resisting the claims being advanced by an Applicant: Albarran v Theodorou [2006] NSWSC 9. The plaintiff had there commenced proceedings to remove a lapsing notice concerning a caveat and Campbell J (as His Honour then was) observed: [5] Today, the lapsing notice has been withdrawn. [6] It is quite clear that the plaintiffs had a caveatable interest. There was no basis for seeking its lapsing. That there was no basis has been amply demonstrated by the conduct of the second defendant, in withdrawing the lapsing notice today. [7] The defendants have not appeared in the proceedings, but I am satisfied that the service of process has occurred. [8] Requiring proceedings to begin, when there is no basis upon which those proceedings could be opposed, is one circumstance in which an indemnity costs order can be granted. I am satisfied that this is an appropriate case for making such an order. Another instance is where a so-called " Calderbank " offer of settlement has been made and rejected: MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236 at 238 to 239 per Lindgren J.
Case: Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98
Outcome: cited
Respondents sought to rely upon O 62 r 36A of the Federal Court Rules as a basis for further resisting or minimising the effect of any order for costs that may be made in favour of the Applicant, but this submission was subsequently abandoned. That Rule provides as follows: Reduction in costs otherwise allowable (1) Where a party is awarded judgment for less than $100,000 on a claim (not including a cross-claim) for a money sum or damages any costs ordered to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders. (2) If the Court or a Judge is of the opinion that a proceeding (including a cross-claim for a money sum or damages) brought in this Court could more suitably have been brought in another court or in a tribunal and so declares, then any costs to be paid, including disbursements, will be reduced by one-third of the amount otherwise allowable under this Order. (3) This rule does not apply to a proceeding under the Admiralty Act 1988 . The operation of that Rule, however, is " triggered by a money judgment " for less than $100,000: Collier Constructions Pty Limited v Foskett Pty Limited [1992] FCA 19 ; (1992) 33 FCR 591 at 593 per French J (as His Honour then was). His Honour further stated that "[i]n my opinion, the operation of subr (1) is not triggered by the simple grant of final declaratory relief ". His Honour, as has subsequently been held, " said nothing about the situation ... where damages, declarations and injunctions were sought, but where the only final relied awarded ... is by way of a money judgment ": Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 at [14] . The Rule is not excluded where damages are sought together with declaratory or injunctive relief: Nokia Corporation v Liu [2009] FCA 20 at [32] , [2009] FCA 20 ; 80 IPR 286 at 298 per Jessup J. Rule 36A, it is considered, has no application where the only substantive relief that is granted is declaratory and injunctive relief and where any claim for monetary relief is not pursued.
Case: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530
Outcome: applied
warrant an order for costs on an indemnity basis the circumstances must be " special " and such as to take the case out of the " ordinary " category. It " must involve behaviour associated with the conduct of the proceeding ... which is so unreasonable as to make it unjust that the other party should be limited in its recovery to party and party costs ": Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 at [4] per Lindgren J (citing NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 , 109 FCR 77 and Waverley Council v Refkin Pty Ltd [2001] FCA 1469).