mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225
Outcome: applied
AIA submits that the principles referred to by Sheppard J in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 apply in respect of proceedings which are conducted in such manner such as to warrant an order for indemnity costs. At page 233 his Honour observed that orders for indemnity costs might be made where proceedings had been conducted: ... in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993)... 21 The allegations made by the applicants concerning the issue of the receipts were wholly inconsistent with the objective facts. The Court is satisfied that such allegations were groundless. Further, there was no factual basis to support the claim that AIA had manipulated the records. The applicants' claims relating to the issue of the receipts and of the computer records should never have been raised (see Colgate-Palmolive v Cussons per Sheppard J at 233).
Case: Degmam Pty Ltd (In liq) v Wright (No 2) (1983) 2 NSWLR 354
Outcome: referred to
It has been recognised that where a party has caused another party or parties to incur unnecessary costs, an order that costs be paid on an indemnity basis may be made. In Degmam Pty Ltd (In liq) v Wright (No 2) (1983) 2 NSWLR 354, Holland J at 358 found that a party had raised false defences which were deliberately concocted to deny the other party its rights. His Honour observed that such conduct grossly prolonged the litigation, causing 'the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues' . See also Rouse v Shepherd [No 2] and Others (1994) 35 NSWLR 277.
Case: Donald Campbell and Company Limited v Pollak [1927] AC 732
Outcome: referred to
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397 Woodwood J (at 400-401) observed that the Court had an 'absolute and unfettered' discretion with regard to the award of costs. In Donald Campbell and Company Limited v Pollak [1927] AC 732 Viscount Cave L.C. said at 811-812: A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569 adopted his Lordship's observations.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397
Outcome: referred to
AIA submits that the principles referred to by Sheppard J in Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 apply in respect of proceedings which are conducted in such manner such as to warrant an order for indemnity costs. At page 233 his Honour observed that orders for indemnity costs might be made where proceedings had been conducted: ... in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993)... 11 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397 Woodwood J (at 400-401) observed that the Court had an 'absolute and unfettered' discretion with regard to the award of costs. In Donald Campbell and Company Limited v Pollak [1927] AC 732 Viscount Cave L.C. said at 811-812: A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569 adopted his Lordship's observations.
Case: Hamod and Another v New South Wales and Another [2002] FCA 424 ; (2002) 188 ALR 659
Outcome: referred to
An order for costs is compensatory not punitive: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; see also Hamod and Another v New South Wales and Another [2002] FCA 424 ; (2002) 188 ALR 659 at 665.
Case: Latoudis v Casey (1990) 170 CLR 534
Outcome: referred to
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others [1988] FCA 202 ; (1988) 81 ALR 397 Woodwood J (at 400-401) observed that the Court had an 'absolute and unfettered' discretion with regard to the award of costs. In Donald Campbell and Company Limited v Pollak [1927] AC 732 Viscount Cave L.C. said at 811-812: A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. In Latoudis v Casey (1990) 170 CLR 534 McHugh J at 569 adopted his Lordship's observations.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
An order for costs is compensatory not punitive: see Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 ; see also Hamod and Another v New South Wales and Another [2002] FCA 424 ; (2002) 188 ALR 659 at 665.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151
Outcome: applied
Given the above facts, the Court considers that it should depart from the usual rule relating to the award of costs. It is just for AIA to receive costs on an indemnity basis in respect of the issues which the Court is satisfied were raised without any factual basis and those which were pursued falsely to the knowledge of the applicants. Since these matters largely occupied hearing time from 11 September 2007, in accordance with the principles in Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151 at 156-158 and Amadio Pty Ltd and Another v Henderson and Others (1998) 81 FCR 149 at 258-259, the Court will order the applicants to pay indemnity costs to AIA from that date.
Case: Rouse v Shepherd [No 2] and Others (1994) 35 NSWLR 277
Outcome: referred to
It has been recognised that where a party has caused another party or parties to incur unnecessary costs, an order that costs be paid on an indemnity basis may be made. In Degmam Pty Ltd (In liq) v Wright (No 2) (1983) 2 NSWLR 354, Holland J at 358 found that a party had raised false defences which were deliberately concocted to deny the other party its rights. His Honour observed that such conduct grossly prolonged the litigation, causing 'the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues' . See also Rouse v Shepherd [No 2] and Others (1994) 35 NSWLR 277.
Case: Yang v American International Assurance Company (Australia) Ltd [2008] FCA 39
Outcome: cited
On 12 March 2008 the Court ordered that the applicants' application be dismissed and that the applicants pay the costs of the respondent ('AIA'): see Yang v American International Assurance Company (Australia) Ltd [2008] FCA 39. 2 AIA now seeks an order that the applicants pay AIA's costs of the proceedings on an indemnity basis or alternatively pay the AIA's costs of the proceedings on a whole party-party basis up to and including 15 June 2007 and thereafter on an indemnity basis. 3 In the primary hearing the applicants contended that Mr Yang had not received any payment in cash from Mr Xu for the renewal of Mr Xu's insurance policies, despite Mr Yang having issued receipts to Mr Xu recording such payment. AIA submits that the applicants knew this claim was false and that the applicants knowingly maintained the litigation raising groundless contentions based upon such false claim.
Case: Aldridge v Booth [1988] FCA 170 ; (1988) 80 ALR 1
Outcome: cited
my view, the conduct of Mr Flynn constituted by the May 2005 allegations amounted to sexual harassment. He clearly made a request for sexual favours to Ms Poniatowska by his emails of 8 May 2005 and 10 May 2005 and by his subsequent SMS text messages. Those requests were unwelcome on the part of Ms Poniatowska: see Aldridge v Booth [1988] FCA 170 ; (1988) 80 ALR 1. It is not necessary to find whether the email of 8 May 2005 was made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Poniatowska would be offended, humiliated or intimidated by it. That is because, in the light of her response to the first email, I find that the subsequent communications referred to, starting with the email of 10 May 2005, were made in circumstances in which a reasonable person, having regard to all the circumstances including the terms of Ms Poniatowska's response, would have anticipated that she would be offended and humiliated by them. She had clearly indicated that she did not wish to receive requests for sexual favours from him. Mr Flynn nevertheless persisted to make such requests in the manner I have found. Having indicated her attitude quite clearly, it was apparent, and a reasonable person would have anticipated, that Ms Poniatowska would be offended if the requests were maintained (as they were). It was also apparent, and a reasonable person would have anticipated, that she would be humiliated by such conduct because it conveys an understanding of the potential preparedness of Ms Poniatowska to have a sexual relationship with him, notwithstanding her clearly expressed attitude to the contrary. Even if Mr Flynn did not see the situation that way, and was nevertheless hopeful of establishing a sexual relationship, that does not result in a different conclusion. The test in s 28A is clearly an objective one: see generally Leslie v Graham [2002] FCA 32 at [70] .
Case: Leslie v Graham [2002] FCA 32
Outcome: cited
my view, the conduct of Mr Flynn constituted by the May 2005 allegations amounted to sexual harassment. He clearly made a request for sexual favours to Ms Poniatowska by his emails of 8 May 2005 and 10 May 2005 and by his subsequent SMS text messages. Those requests were unwelcome on the part of Ms Poniatowska: see Aldridge v Booth [1988] FCA 170 ; (1988) 80 ALR 1. It is not necessary to find whether the email of 8 May 2005 was made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Poniatowska would be offended, humiliated or intimidated by it. That is because, in the light of her response to the first email, I find that the subsequent communications referred to, starting with the email of 10 May 2005, were made in circumstances in which a reasonable person, having regard to all the circumstances including the terms of Ms Poniatowska's response, would have anticipated that she would be offended and humiliated by them. She had clearly indicated that she did not wish to receive requests for sexual favours from him. Mr Flynn nevertheless persisted to make such requests in the manner I have found. Having indicated her attitude quite clearly, it was apparent, and a reasonable person would have anticipated, that Ms Poniatowska would be offended if the requests were maintained (as they were). It was also apparent, and a reasonable person would have anticipated, that she would be humiliated by such conduct because it conveys an understanding of the potential preparedness of Ms Poniatowska to have a sexual relationship with him, notwithstanding her clearly expressed attitude to the contrary. Even if Mr Flynn did not see the situation that way, and was nevertheless hopeful of establishing a sexual relationship, that does not result in a different conclusion. The test in s 28A is clearly an objective one: see generally Leslie v Graham [2002] FCA 32 at [70] .
Case: McDonald v State of South Australia [2008] SASC 134
Outcome: cited
cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217. In a recent decision of Tracey J, Van Efferen v CMA Corporation Limited [2009] FCA 597 , his Honour noted at [80] that the question of whether such terms may be implied in contracts of employment is one of controversy on which the High Court has yet to make a definitive pronouncement. His Honour reviewed the authorities and made the following observations at [83]-[85]: In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts". On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] . As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J's observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J's ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them.
Case: Delooze v Healey [2007] WASCA 157
Outcome: cited
cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.
Case: Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44
Outcome: cited
cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.
Case: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104
Outcome: cited
cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.
Case: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217
Outcome: cited
cause of action predicates the existence of a duty of mutual trust and confidence, to be implied into Ms Poniatowska's contract of employment. Ms Poniatowska referred to a series of Australian authorities purportedly accepting the existence of such an implied term: McDonald v State of South Australia [2008] SASC 134 ; Delooze v Healey [2007] WASCA 157 ; Koehler v Cerebos (Australia) Ltd [2005] HCA 15 ; (2005) 222 CLR 44 ; and Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104. Since the hearing, an appeal has been decided in respect of the latter matter: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217.
Case: Van Efferen v CMA Corporation Limited [2009] FCA 597
Outcome: followed
a recent decision of Tracey J, Van Efferen v CMA Corporation Limited [2009] FCA 597 , his Honour noted at [80] that the question of whether such terms may be implied in contracts of employment is one of controversy on which the High Court has yet to make a definitive pronouncement. His Honour reviewed the authorities and made the following observations at [83]-[85]: In this Court single judges have adopted a more guarded approach. In McDonald (at 398-400) Buchanan J reviewed the authorities relating to the mutual trust and confidence term. He expressed disquiet about the notion that such a term could have escaped judicial notice for so long. More significantly he queried whether such a term could be implied consistently with the principles expounded by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283. I respectfully share his Honour's reservations. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts". On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] . As a single judge I would follow the decisions of other single judges unless I considered them to be clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. Although Buchanan J's observations in McDonald were obiter I nonetheless consider them to be correct. Kenny J's ruling in Walker forms part of the ratio of her decision in that case. I do not consider either decision to be clearly wrong. Had it been necessary I would have followed them. As I have found that ESA discriminated against Ms Poniatowska on the ground of her sex, and contravened s 14(2)(c) of the SD Act by so discriminating against her by dismissing her, I do not need to decide whether, in the circumstances, a term of mutual trust and confidence ought be implied into Ms Poniatowska's employment contract. Such a finding would not add to the range of remedies or the extent of the compensation awarded. In those circumstances, it is appropriate simply to note the observations of Tracey J in Van Efferen v CMA Corporation Limited [2009] FCA 597. It is now necessary to consider the appropriate award of damages or other relief to be granted to Ms Poniatowska. In her application, she seeks the giving of an apology or apologies from those respondents against whom adverse findings have been made.
Case: Jones v Toben [2002] FCA 1150 ; (2002) 71 ALD 629
Outcome: cited
are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben [2002] FCA 1150 ; (2002) 71 ALD 629 at [106] ; Jones v The Bible Believers' Church [2007] FCA 55 at [65] .
Case: Jones v The Bible Believers' Church [2007] FCA 55 
Outcome: cited
are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben [2002] FCA 1150 ; (2002) 71 ALD 629 at [106] ; Jones v The Bible Believers' Church [2007] FCA 55 at [65] .