mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150
Outcome: cited
There is an undated note taken by Mr Watson of a discussion with an officer of the insurer: Therefore, there is a requirement to work if capable. If the insured person returns to work at a reduced capacity, the income protection is replacement income (business related income). If expenses exceed other business income (ie ignoring the Income Protection benefit itself) then to sell off the business is against the intent of the insurance act and the insurance company would cease benefit until other work was obtained. In a practical sense, Mr Watson should take reasonable steps to "mitigate his loss". That obligation is one applicable to the measure of damages in all contracts. It does not apply as a term of the policy. Section 13 of the Insurance Contracts Act 1984 (Cth) implies a term that each party to an insurance contract will act towards the other party with the utmost good faith. It could be expected that Mr Watson should therefore act reasonably in relation to the business activities or employment which he chooses to undertake: Dufty v City Mutual General Insurance Ltd [1977] Qld R 94. The element of reasonableness is also explained in cases such as Fidelity and Casualty Co of New York v Mitchell [1917] AC 592 ; Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150; and Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77. That obligation extends to an insurer in determining whether an insured was totally and permanently disabled: see Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453. Reference may also be made to regs 17 and 18 of the Insurance Contracts Regulations 1985 (Cth) and to the decision in QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270. Ultimately, the wording of the policy is the critical element.
Case: Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77
Outcome: cited
There is an undated note taken by Mr Watson of a discussion with an officer of the insurer: Therefore, there is a requirement to work if capable. If the insured person returns to work at a reduced capacity, the income protection is replacement income (business related income). If expenses exceed other business income (ie ignoring the Income Protection benefit itself) then to sell off the business is against the intent of the insurance act and the insurance company would cease benefit until other work was obtained. In a practical sense, Mr Watson should take reasonable steps to "mitigate his loss". That obligation is one applicable to the measure of damages in all contracts. It does not apply as a term of the policy. Section 13 of the Insurance Contracts Act 1984 (Cth) implies a term that each party to an insurance contract will act towards the other party with the utmost good faith. It could be expected that Mr Watson should therefore act reasonably in relation to the business activities or employment which he chooses to undertake: Dufty v City Mutual General Insurance Ltd [1977] Qld R 94. The element of reasonableness is also explained in cases such as Fidelity and Casualty Co of New York v Mitchell [1917] AC 592 ; Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150; and Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77. That obligation extends to an insurer in determining whether an insured was totally and permanently disabled: see Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453. Reference may also be made to regs 17 and 18 of the Insurance Contracts Regulations 1985 (Cth) and to the decision in QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270. Ultimately, the wording of the policy is the critical element.
Case: Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453
Outcome: cited
There is an undated note taken by Mr Watson of a discussion with an officer of the insurer: Therefore, there is a requirement to work if capable. If the insured person returns to work at a reduced capacity, the income protection is replacement income (business related income). If expenses exceed other business income (ie ignoring the Income Protection benefit itself) then to sell off the business is against the intent of the insurance act and the insurance company would cease benefit until other work was obtained. In a practical sense, Mr Watson should take reasonable steps to "mitigate his loss". That obligation is one applicable to the measure of damages in all contracts. It does not apply as a term of the policy. Section 13 of the Insurance Contracts Act 1984 (Cth) implies a term that each party to an insurance contract will act towards the other party with the utmost good faith. It could be expected that Mr Watson should therefore act reasonably in relation to the business activities or employment which he chooses to undertake: Dufty v City Mutual General Insurance Ltd [1977] Qld R 94. The element of reasonableness is also explained in cases such as Fidelity and Casualty Co of New York v Mitchell [1917] AC 592 ; Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150; and Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77. That obligation extends to an insurer in determining whether an insured was totally and permanently disabled: see Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453. Reference may also be made to regs 17 and 18 of the Insurance Contracts Regulations 1985 (Cth) and to the decision in QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270. Ultimately, the wording of the policy is the critical element.
Case: QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270
Outcome: cited
There is an undated note taken by Mr Watson of a discussion with an officer of the insurer: Therefore, there is a requirement to work if capable. If the insured person returns to work at a reduced capacity, the income protection is replacement income (business related income). If expenses exceed other business income (ie ignoring the Income Protection benefit itself) then to sell off the business is against the intent of the insurance act and the insurance company would cease benefit until other work was obtained. In a practical sense, Mr Watson should take reasonable steps to "mitigate his loss". That obligation is one applicable to the measure of damages in all contracts. It does not apply as a term of the policy. Section 13 of the Insurance Contracts Act 1984 (Cth) implies a term that each party to an insurance contract will act towards the other party with the utmost good faith. It could be expected that Mr Watson should therefore act reasonably in relation to the business activities or employment which he chooses to undertake: Dufty v City Mutual General Insurance Ltd [1977] Qld R 94. The element of reasonableness is also explained in cases such as Fidelity and Casualty Co of New York v Mitchell [1917] AC 592 ; Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150; and Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77. That obligation extends to an insurer in determining whether an insured was totally and permanently disabled: see Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453. Reference may also be made to regs 17 and 18 of the Insurance Contracts Regulations 1985 (Cth) and to the decision in QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270. Ultimately, the wording of the policy is the critical element.
Case: Bahonko v Sterjov [2007] FCA 867
Outcome: referred to
On 24 May 2007, following the closure of the respondents' evidentiary case on the two applications (see [2007] FCA 1555 at [4] ) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents' legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews. Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867.
Case: Bahonko v Sterjov [2007] FCA 1341
Outcome: referred to
In relation to other purported contempt claims made by Ms Bahonko about the evidence given by witnesses during the course of the trial before Jessup J, there is no basis for those allegations to be made, let alone heard and determined. The fact of the claim is referred to in para [25] of the reasons for decision of Jessup J reported at [2007] FCA 1341. The credibility of the witnesses was addressed by Jessup J in his reasons for decision and are reflected in the Substantive Orders and the Costs Orders which are the subject of the Appeal. The appeal process is the procedure to be adopted by Ms Bahonko if she seeks to challenge the findings made by Jessup J. 18 There is no basis for Ms Bahonko's purported contempt claims to be heard and determined. 19 Ms Bahonko is to be provided with a copy of the transcript of evidence before Jessup J in VID 114/2006 in an electronic form at the expense of the Court.
Case: Bahonko v Sterjov [2007] FCA 1377
Outcome: referred to
Goldberg J considered the question of a stay of the Substantive Orders in Bahonko v Sterjov [2007] FCA 1377. His Honour summarised the principles in the following terms at [6]: "The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders. Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay: See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498." 9 The primary matter relied upon by Ms Bahonko in support of a stay was that " there were and are not any costs due against me." That is an issue for the Appeal of the Substantive Orders. 10 The additional matters referred to by Ms Bahonko in her affidavit sworn on 20 September 2007 and in her oral submissions are properly described as scandalous and vexatious. They include allegations of criminal conduct and conduct constituting abuse of office. Those allegations are unsupported and insupportable. None of the matters relied upon by Ms Bahonko provides any basis for the grant of stay of the Costs Orders.
Case: Bahonko v Sterjov &amp; Ors [2007] FCA 1555
Outcome: referred to
Appellant's claims of Contempt of the Court by Mr McKenney, Mr Vitiello, the Defendants and their witness Ms Esther Keji Matthew to be determined prior to the appeal hearing &amp; the Contempt of the Court proceeding is deemed to commenced." 2 For the reasons below, subject to one qualification, I would dismiss the Notice of Motion. BACKGROUND Substantive Proceedings 3 The history of the substantive proceedings which give rise to this Notice of Motion are set out in the reasons for decision I delivered earlier today in VID 822 of 2007: see Bahonko v Sterjov &amp; Ors [2007] FCA 1555 at [3] to [7]. I adopt the same defined terms in these reasons. ANALYSIS Application for leave to access transcripts: para 1 of the Notice of Motion 4 Ms Bahonko seeks an order that the Court make available to her a transcript in an electronic form or in a printed form of the substantive proceedings before Jessup J. 5 Having regard to the reasons for decision of Jessup J and the grounds of appeal, it appears to me to be inevitable that the Appeal Books before the Full Court of the Federal Court will need to include a copy of the transcript of the evidence given by Ms Bahonko and the respondents' witnesses. It would therefore facilitate the conduct of the Appeal if all participants in the Appeal were provided with a copy of the transcript of the evidence before Jessup J. Accordingly, in relation to the transcript of the substantive proceedings, the request for access to the transcript is granted but only in respect of evidence given viva voce before Jessup J. That transcript will be provided by the Court in an electronic form. 6 Ms Bahonko applies for a stay of the Costs Orders. 14 On 24 May 2007, following the closure of the respondents' evidentiary case on the two applications (see [2007] FCA 1555 at [4] ) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents' legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews. Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867.
Case: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353
Outcome: applied
A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ. See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J. That application is dismissed.
Case: Paramasivam v Randwick City Council [2005] FCA 369
Outcome: referred to
A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ. See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J. That application is dismissed.
Case: Oxford Funding Pty Ltd v Oxford Asia-Pacific Investments Pty Ltd [2005] FCA 1637
Outcome: cited
The applicant brought an application for an interlocutory injunction. Upon the respondent giving undertakings that it would not use the name "Oxford" in connection with debt factoring, debt financing or debt collection services or outsourcing services in relation to accounts receivable administration, I dismissed the application and reserved the costs thereof: Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd [2005] FCA 1637. An important element was a consideration of the balance of convenience: see [14]. 3 Following protracted negotiations the parties have now resolved their differences and executed a deed of settlement. However, the question of the costs of the proceeding remains in issue. 4 The applicant submits that the respondent should pay all of its costs, or alternatively all of its costs up to and including the injunction application. The respondent's case is that the applicant should pay its costs of the injunction application or, alternatively, that each party should bear its own costs of the whole proceeding. All costs orders are sought on a party/party basis.
Case: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201
Outcome: cited
The Court has undoubted jurisdiction to make an order for costs notwithstanding that the proceeding has otherwise settled; see for example Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201 (Hill J), Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 (McHugh J), We Two Pty Ltd v Shorrock [2002] FCA 875 (Finkelstein J). While any question of costs always remains a matter of discretion, the approach in the cases is usually that the Court will not try a hypothetical action to decide which party would have won. Rather, the Court will assess the conduct of the parties including, in appropriate cases, the conduct prior to the commencement of proceedings, to see whether that conduct was "reasonable". This rather suggests that an order will only be made where the party seeking costs has acted reasonably and the other party has not. Where both parties have acted reasonably, or unreasonably, the costs should lie where they fall. "Unreasonableness" in this context could include rejecting a reasonable offer or an invitation to engage in discussions which hold out reasonable prospects of a compromise.
Case: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625
Outcome: cited
The Court has undoubted jurisdiction to make an order for costs notwithstanding that the proceeding has otherwise settled; see for example Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201 (Hill J), Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 (McHugh J), We Two Pty Ltd v Shorrock [2002] FCA 875 (Finkelstein J). While any question of costs always remains a matter of discretion, the approach in the cases is usually that the Court will not try a hypothetical action to decide which party would have won. Rather, the Court will assess the conduct of the parties including, in appropriate cases, the conduct prior to the commencement of proceedings, to see whether that conduct was "reasonable". This rather suggests that an order will only be made where the party seeking costs has acted reasonably and the other party has not. Where both parties have acted reasonably, or unreasonably, the costs should lie where they fall. "Unreasonableness" in this context could include rejecting a reasonable offer or an invitation to engage in discussions which hold out reasonable prospects of a compromise.
Case: We Two Pty Ltd v Shorrock [2002] FCA 875
Outcome: cited
The Court has undoubted jurisdiction to make an order for costs notwithstanding that the proceeding has otherwise settled; see for example Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201 (Hill J), Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 (McHugh J), We Two Pty Ltd v Shorrock [2002] FCA 875 (Finkelstein J). While any question of costs always remains a matter of discretion, the approach in the cases is usually that the Court will not try a hypothetical action to decide which party would have won. Rather, the Court will assess the conduct of the parties including, in appropriate cases, the conduct prior to the commencement of proceedings, to see whether that conduct was "reasonable". This rather suggests that an order will only be made where the party seeking costs has acted reasonably and the other party has not. Where both parties have acted reasonably, or unreasonably, the costs should lie where they fall. "Unreasonableness" in this context could include rejecting a reasonable offer or an invitation to engage in discussions which hold out reasonable prospects of a compromise.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: followed
In reaching the conclusion that there is jurisdictional error, it is recognised that an error of fact does not of itself normally constitute error of law, let alone jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 6 per Brennan J. In a context where there are competing facts, the weight to be ascribed to particular pieces of evidence is a matter entrusted by the legislature to the Tribunal for resolution. Mere disagreement with the ultimate finding of fact made does not expose error of law. And what may be described as " illogical or irrational " inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion: cf Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [8] [9] per Gleeson CJ; [2003] HCA 30 ; 198 ALR 59. See also: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [22] [30] per Tamberlin, Emmett and Weinberg JJ.
Case: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576
Outcome: followed
That obligation, it is considered, is not confined to an obligation to advise an applicant " of any adverse conclusion which has been arrived at ". In Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 2, Northrop, Miles and French JJ in an oft-cited passage observed: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ...
Case: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235
Outcome: considered
In reaching the conclusion that there is jurisdictional error, it is recognised that an error of fact does not of itself normally constitute error of law, let alone jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 6 per Brennan J. In a context where there are competing facts, the weight to be ascribed to particular pieces of evidence is a matter entrusted by the legislature to the Tribunal for resolution. Mere disagreement with the ultimate finding of fact made does not expose error of law. And what may be described as " illogical or irrational " inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion: cf Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [8] [9] per Gleeson CJ; [2003] HCA 30 ; 198 ALR 59. See also: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [22] [30] per Tamberlin, Emmett and Weinberg JJ.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Outcome: considered
In reaching the conclusion that there is jurisdictional error, it is recognised that an error of fact does not of itself normally constitute error of law, let alone jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 6 per Brennan J. In a context where there are competing facts, the weight to be ascribed to particular pieces of evidence is a matter entrusted by the legislature to the Tribunal for resolution. Mere disagreement with the ultimate finding of fact made does not expose error of law. And what may be described as " illogical or irrational " inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion: cf Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [8] [9] per Gleeson CJ; [2003] HCA 30 ; 198 ALR 59. See also: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [22] [30] per Tamberlin, Emmett and Weinberg JJ.