mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360
Outcome: applied
notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233 234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 153 (per Black CJ) and at 156 158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] [33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales &amp; Mackenzie) to DLA Phillips Fox dated that day. Omitting formal parts, that letter was in the following terms: Without Prejudice Save as to the Question of Costs Dear Sirs, Re: Garth Living Pty Ltd and Anor -ats- Bitech Engineering No. NSD 1681 of 2006 The First Respondent/Cross Claimant hereby offers to settle the proceeding inclusive of the Applicant/Cross Respondent's claim, interest and costs, on the following terms ("Offer of Settlement"): The Applicant discontinue the proceeding; The Applicant pay to the First Respondent its costs to date in defending the proceeding; The First Respondent discontinue its cross-claim; There be no order as to costs on the cross-claim. The Offer of Settlement is open for acceptance in writing until 4.00pm on Friday 25 July 2008 after which time it will expire. The Offer of Settlement is made in accordance with the principles applied in Calderbank -v Calderbank (1975) 3 All ER 333 and Cutts -v- Head [1983] EWCA Civ 8 ; (1984) 1 All ER 597 and adopted in the Supreme Court of Victoria in MT Associates Pty Ltd -v- Aqua Max Pty Ltd and Anor (No. 3) (2000) VSC 163 and on the basis of the policy considerations referred to by Hon. Justice Byrne in Mutual Community Limited -v- Lorden Pty Ltd (unreported Supreme Court of Victoria, Byrne J. 28 April 1993 at 12-13) as referred to in Stipanov -v- Mier (No. 2) (unreported Sup. Crt. Victoria, Hollingworth J. 22 November 2006); (2006) VSC 424 , at para 10. Should the Offer of Settlement not be accepted by the Applicant, the First Respondent reserves its right to produce this letter to the Court on the question of costs, and to make application to the Court for an award of indemnity costs against the Applicant for all costs of the proceeding from the date of the Offer of Settlement (including any trial). Should you require clarification in respect to any aspect of the Offer of Settlement, then please contact me. Please confirm receipt of this correspondence.
Case: Vasram v AMP Life Ltd [2002] FCA 1286
Outcome: applied
offer made by Cohen on 4 August 2008 was made some two and a half months before the trial. It represented some compromise in that it involved an abandonment by Cohen of any entitlement to its costs. This type of compromise will usually not be material when the Court is considering an application for indemnity costs based upon an allegedly unreasonable rejection of a settlement offer ( Vasram v AMP Life Ltd [2002] FCA 1286 at [12] ). The offer required Bitech to abandon its claim altogether. The matters mentioned in [18] above are also relevant to my consideration of Cohen's claim for indemnity costs. For all of these reasons, I do not think that Cohen's claim for an order for indemnity costs has been made out. I do not think that there are any other special circumstances in relation to this proceeding which demand any further departure from the usual rule that the costs should follow the event. I will therefore make orders accordingly. DLA Phillips Fox holds in its trust account: (a) $150,000.00 as security for Garth Living's costs; and (b) $150,000.00 as security for Cohen's costs of the proceedings. On 11 July 2008, Bunnings made a further offer of settlement in which it proposed that Bitech should discontinue its proceeding against Bunnings and pay Bunnings' costs of that proceeding. There was no element of compromise in this offer. It cannot assist Bunnings in its claim for indemnity costs (see Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212 at [10] ; Vasram [2002] FCA 1286 at [12] ). Bunnings has not made out a case for indemnity costs.
Case: R v Commonwealth Conciliation and Arbitration Commission ; Ex parte The Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546
Outcome: cited
appellant contends that s 426A, properly construed, confers a discretion to exercise a statutory power in one of two ways. First, provided the pre-conditions to the exercise of power are satisfied, the Tribunal may make a decision on the review 'without taking any further action to allow or enable the applicant to appear before it' (s 426A(1)). Secondly, the Tribunal might delay its decision on the review and reschedule the hearing to enable the applicant to appear before it (s 426A(2)). The exercise of the discretion thus arising is informed, it is said, principally by two things. First, on the facts of this case, the applicant made it plain to the Tribunal that he wished to attend a hearing and be heard in relation to his claims, with the assistance of an interpreter. The election to exercise a discretion to make a decision without taking any further action to enable the applicant to appear before the Tribunal necessarily foreclosed the applicant's opportunity to advance arguments in support of the claims in circumstances where the Tribunal understood the applicant wished to take advantage of that 'hearing opportunity'. Secondly, the principles upon which the statutory power to either make a decision or reschedule a hearing might be exercised are informed, it is said, by the nature of the jurisdiction exercised by the decision-maker ( R v Commonwealth Conciliation and Arbitration Commission ; Ex parte The Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553); the statutory framework consisting of express and implied provisions in the Act and inferences of legislative intention to be drawn from the subject matter of the Act ( Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1964-1965) 113 CLR 475 at 503 and 504 per Kitto J); and a recognition that when a discretionary power is statutorily conferred upon a decision-maker the power must be exercised '... reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention' ( Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36 per Brennan CJ.
Case: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1964-1965) 113 CLR 475
Outcome: cited
appellant contends that s 426A, properly construed, confers a discretion to exercise a statutory power in one of two ways. First, provided the pre-conditions to the exercise of power are satisfied, the Tribunal may make a decision on the review 'without taking any further action to allow or enable the applicant to appear before it' (s 426A(1)). Secondly, the Tribunal might delay its decision on the review and reschedule the hearing to enable the applicant to appear before it (s 426A(2)). The exercise of the discretion thus arising is informed, it is said, principally by two things. First, on the facts of this case, the applicant made it plain to the Tribunal that he wished to attend a hearing and be heard in relation to his claims, with the assistance of an interpreter. The election to exercise a discretion to make a decision without taking any further action to enable the applicant to appear before the Tribunal necessarily foreclosed the applicant's opportunity to advance arguments in support of the claims in circumstances where the Tribunal understood the applicant wished to take advantage of that 'hearing opportunity'. Secondly, the principles upon which the statutory power to either make a decision or reschedule a hearing might be exercised are informed, it is said, by the nature of the jurisdiction exercised by the decision-maker ( R v Commonwealth Conciliation and Arbitration Commission ; Ex parte The Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 553); the statutory framework consisting of express and implied provisions in the Act and inferences of legislative intention to be drawn from the subject matter of the Act ( Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1964-1965) 113 CLR 475 at 503 and 504 per Kitto J); and a recognition that when a discretionary power is statutorily conferred upon a decision-maker the power must be exercised '... reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention' ( Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36 per Brennan CJ.
Case: Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31
Outcome: cited
nevertheless remains a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so ( Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31) recognising the broader notion of 'the interests of justice' suggested in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 per Branson, Katz JJ at [8], and the discipline required of parties in the conduct of the case ( Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 per Gyles J at [61] [62]).
Case: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43
Outcome: cited
nevertheless remains a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so ( Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31) recognising the broader notion of 'the interests of justice' suggested in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 per Branson, Katz JJ at [8], and the discipline required of parties in the conduct of the case ( Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 per Gyles J at [61] [62]).
Case: Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9
Outcome: cited
nevertheless remains a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so ( Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31) recognising the broader notion of 'the interests of justice' suggested in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 per Branson, Katz JJ at [8], and the discipline required of parties in the conduct of the case ( Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 per Gyles J at [61] [62]).
Case: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543
Outcome: cited
determining the question of whether leave should be given to file the proposed amended notice of appeal, it is necessary to give some consideration to the merits of the ground raised and consider whether the ground has a reasonable prospect of success. The strength of the prospect of success and the substance of the ground necessarily informs whether it is expedient and in the interests of justice that leave be given. See Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]. In relation to the question of whether the issue was raised before Federal Magistrate Barnes, her Honour noted at [13] that the application for review filed on 16 February 2004 in the Federal Court contained 'a number of generally expressed and unparticularised grounds'. An amended application was filed on 31 March 2004. A further amended application was filed on 28 June 2004 and a further amended application was filed on 9 August 2004. In this appeal, the appellant seeks leave to file an affidavit of Laura Rutter affirmed on 31 July 2006 which annexes the application and each amended application. In order to complete the contextual record, I gave leave to read and file the affidavit of Ms Rutter in the appeal. No version of the application document raises, in terms, the ground now sought to be agitated by the appellant. The highest at which the matter might be put is that Federal Magistrate Barnes noted at [17] a claim by the appellant that he had been denied procedural fairness by the Tribunal. The content of that claim seems to be based upon an alleged failure on the part of the Tribunal to comply with ss 424A and 425 of the Act. I am unpersuaded that the appellant raised the current contention in the earlier proceedings. The attempt to do so now raises the matter for the first time.
Case: NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287
Outcome: cited
underlying facts going to the ground were, however, examined by her Honour. At [15] her Honour considered the principles governing the decision by the Tribunal to proceed pursuant to s 426A to make a decision on the review consequent upon the Tribunal's invitation to the appellant of 25 September 2003 to appear before the Tribunal and the failure on the part of the appellant to appear on the nominated day and at the nominated time and place. The Tribunal said this: 'The Tribunal based its decision upon its lack of satisfaction on the material before it that the applicant met the applicable criteria. The findings that the Tribunal made were open to it on the material before it. The Tribunal was not obliged to accept at face value the applicant's claims: see SZDXC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1306 at [15] [16]. I note that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter such as the letter of 25 September 2003 putting him on notice that the Tribunal was not prepared to make a favourable decision on the information before it, the Full Court of the Federal Court described rejection of the application for review as the "inevitable consequence" of the applicant's non-attendance at the Tribunal hearing: see NAVX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 287 at [5] .' (' NAVX v MIMIA')
Case: NASF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 162
Outcome: cited
paragraphs [23] [25] of the judgment, her Honour addressed the complaint made by the appellant that his migration agent had 'put him into the dark' concerning the opportunity to appear before the Tribunal and thus the appellant had not been afforded procedural fairness. Apart from noting that the Tribunal had written to the appellant's migration agent and to the appellant at both residential addresses nominated in the documentation before the Tribunal, her Honour observed that NASF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 162 (' NASF v MIMIA') is authority for the proposition that no lack of procedural fairness or other jurisdictional error arises in circumstances where the Tribunal's invitation of 25 September 2003 was sent in accordance with the requirements of the Act. No issue is raised concerning compliance with ss 425 or 425A as the appellant responded to the invitation on 27 September 2003 affirming a desire to appear. However, the appellant says that any reliance upon NASF v MIMIA in the context of the proposed ground of appeal is unsound because in that case a similar point of differentiation also arises namely, that the appellant's migration agent, in that case, had returned the form to the Tribunal stating that the appellant did not wish to attend the hearing before the Tribunal. Accordingly, it is not correct to describe either NAVX v MIMIA or NASF v MIMIA as authorities guiding or informing the exercise of the discretion conferred upon the Tribunal by s 426A on the footing that they represent 'similar circumstances' (as Federal Magistrate Barnes observed at [15]).
Case: Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273
Outcome: cited
respondent says that in considering the question of whether the Tribunal ought to have rescheduled the appellant's appearance before it, an adjournment of the hearing upon the failure of the appellant to attend ought to have been granted because adjournments are more readily granted in inquisitorial proceedings ( Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 283 per Moore J); the election to proceed to make a decision without taking any further action to enable the appellant to appear may involve procedural fairness on the ground that speed and peremptoriness may convey an inference that the Tribunal has failed to consider relevant material and engaged in a constructive excess of jurisdiction ( Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197); and that consistent with the observations of McHugh J in Minister for Immigration &amp; Multicultural Affairs Re ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [126] , the rules of natural justice regulate the exercise of a power conferred upon a public official (or Tribunal) unless those rules '... are excluded by plain words of necessary intendment (Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598)' and 'An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" (Annetts v McCann at 598) Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Annetts v McCann also at 598)' , per McHugh J at [126].
Case: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197
Outcome: cited
respondent says that in considering the question of whether the Tribunal ought to have rescheduled the appellant's appearance before it, an adjournment of the hearing upon the failure of the appellant to attend ought to have been granted because adjournments are more readily granted in inquisitorial proceedings ( Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 283 per Moore J); the election to proceed to make a decision without taking any further action to enable the appellant to appear may involve procedural fairness on the ground that speed and peremptoriness may convey an inference that the Tribunal has failed to consider relevant material and engaged in a constructive excess of jurisdiction ( Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197); and that consistent with the observations of McHugh J in Minister for Immigration &amp; Multicultural Affairs Re ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [126] , the rules of natural justice regulate the exercise of a power conferred upon a public official (or Tribunal) unless those rules '... are excluded by plain words of necessary intendment (Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598)' and 'An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" (Annetts v McCann at 598) Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Annetts v McCann also at 598)' , per McHugh J at [126].
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
respondent says that in considering the question of whether the Tribunal ought to have rescheduled the appellant's appearance before it, an adjournment of the hearing upon the failure of the appellant to attend ought to have been granted because adjournments are more readily granted in inquisitorial proceedings ( Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 283 per Moore J); the election to proceed to make a decision without taking any further action to enable the appellant to appear may involve procedural fairness on the ground that speed and peremptoriness may convey an inference that the Tribunal has failed to consider relevant material and engaged in a constructive excess of jurisdiction ( Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197); and that consistent with the observations of McHugh J in Minister for Immigration &amp; Multicultural Affairs Re ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [126] , the rules of natural justice regulate the exercise of a power conferred upon a public official (or Tribunal) unless those rules '... are excluded by plain words of necessary intendment (Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598)' and 'An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" (Annetts v McCann at 598) Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Annetts v McCann also at 598)' , per McHugh J at [126].
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: discussed
The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.