mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bostock v Ramsey Urban District [1900] 2 QB 616
Outcome: cited
No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.
Case: Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201
Outcome: cited
No restrictive interpretation of "good cause" has been imposed. Bowen LJ said in Jones v Curling (1884) 13 QBD 262 at 272: ... "good cause" really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts the judge should look in the first place at the result of the action itself... and he should look also at the conduct of the parties to see whether either of them had in anyway involved the other unnecessarily in the expense of litigation... On the other hand, the conduct relevant to "good cause" must exhibit a connection with the institution or conduct of the proceedings: see Huxley v West London Extension Railway Co (1889) 14 App Cas 26 at 33-34 per Lord Watson; Bostock v Ramsey Urban District Council [1900] 2 QB 616 at 627 per Romer LJ. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201.
Case: Latoudis v Casey (1990) 170 CLR 534
Outcome: cited
In Latoudis v Casey (1990) 170 CLR 534 , the Court also considered the principles which guide a court in exercising the discretion whether to award costs. In that case the defendant was charged with theft of a motorcar, receiving stolen goods and unlawful possession of the same goods but was acquitted. The Magistrate had refused the defendant's application for costs on the ground that the informant had acted reasonably in instituting the proceedings and that the defendant had caused suspicion to fall on him by failing to seek proof of ownership of the goods when he acquired them. Mason CJ, Toohey and McHugh JJ (Brennan and Dawson JJ dissenting) held that the Magistrate's exercise of the costs discretion had miscarried and the defendant was entitled to his costs. McHugh J at 569-570 set out the following test: Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully bought against the defendant or that the conduct of the defendant occasioned unnecessary expense... Thus non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs. ... A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs.
Case: Jennings v Zilahi-Kis [1972] 2 SASR 493
Outcome: discussed
In Jennings v Zilahi-Kis [1972] 2 SASR 493 , fraud proceedings were not successful. However, Bray CJ held that, even where fraud is not established, a successful defendant may be deprived of his costs by reason of circumstances leading up to and connected with the litigation. At 520 his Honour said: But it does mean, in my view, that I am justified in holding that the defendant company to a large extent brought this litigation upon itself. It has so enmeshed itself in conflicting obligations and ambiguous behaviour that it is not surprising that the plaintiff advisers decided to join it in this action. It could not have acted as it did, it might not have unreasonably have thought, unless it had been implicated in the original misrepresentations.
Case: Capolingua v Phylum Pty Ltd (1991) 5 WAR 137
Outcome: discussed
Hence, the costs discretion has been exercised against successful defendants where the defendant's conduct has occasioned unnecessary litigation and expense or has inappropriately prolonged proceedings. For example in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 , the way the defendants had pleaded their case, their conduct at a mediation conference and their counsel's failure to comply with orders pre-trial, caused the issues to be obscured, and unnecessary evidence to be led, resulting in an unnecessarily prolonged trial. Ipp J at 142 held that justice required there should be no order as to costs. See also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15; and Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) (1987) 43 SASR 588 per Jacobs J at 592.
Case: Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1
Outcome: referred to
Hence, the costs discretion has been exercised against successful defendants where the defendant's conduct has occasioned unnecessary litigation and expense or has inappropriately prolonged proceedings. For example in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 , the way the defendants had pleaded their case, their conduct at a mediation conference and their counsel's failure to comply with orders pre-trial, caused the issues to be obscured, and unnecessary evidence to be led, resulting in an unnecessarily prolonged trial. Ipp J at 142 held that justice required there should be no order as to costs. See also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15; and Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) (1987) 43 SASR 588 per Jacobs J at 592.
Case: Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1987) 43 SASR 588
Outcome: referred to
Hence, the costs discretion has been exercised against successful defendants where the defendant's conduct has occasioned unnecessary litigation and expense or has inappropriately prolonged proceedings. For example in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 , the way the defendants had pleaded their case, their conduct at a mediation conference and their counsel's failure to comply with orders pre-trial, caused the issues to be obscured, and unnecessary evidence to be led, resulting in an unnecessarily prolonged trial. Ipp J at 142 held that justice required there should be no order as to costs. See also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15; and Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) (1987) 43 SASR 588 per Jacobs J at 592.
Case: Bahonko v Nurses Board of Victoria [2004] VCAT 1663
Outcome: referred to
On 4 June 2004, Ms Bahonko filed an application with the Victorian Civil and Administrative Tribunal ('VCAT') for review of the NBV's decision of 24 May 2004 to suspend her registration. On 19 August 2004, on application by the NBV, VCAT decided to strike out Ms Bahonko's application: see Bahonko v Nurses Board of Victoria [2004] VCAT 1663. 26 On 17 June 2004, the NBV held a board meeting to review its decision to suspend Ms Bahonko's registration and it decided to maintain the suspension. A letter was written to Ms Bahonko explaining the NBV's decision to continue the investigations and the suspension of her registration. 27 Ms Bahonko claimed she was told by the NBV's investigator, Ms Miln, that the NBV would lift her suspension, but due to her not signing some papers, this did not occur. However, according to a letter to Ms Bahonko from Russell Kennedy on behalf of the NBV, it was stated that Ms Miln required Ms Bahonko to "cooperate in and assist with the investigation process" in order to have the suspension lifted. It was also stated that a decision to lift the suspension could only be made by the NBV.
Case: Bahonko v Nurses Board of Victoria [2005] HCATrans 864
Outcome: referred to
On 25 August 2004, proceedings were filed by Ms Bahonko in the Supreme Court of Victoria seeking, amongst other things, an injunction to restrain the NBV's hearing of the complaints against Ms Bahonko scheduled for 27 September 2004. On 6 September 2004, the Supreme Court proceeding was heard and dismissed on the basis that it had no prospect of success. Ms Bahonko appealed this decision, which was dismissed, and Ms Bahonko's application for special leave to appeal in the High Court was also refused: see Bahonko v Nurses Board of Victoria [2005] HCATrans 864 (20 October 2005). 35 The Panel's formal hearing went ahead on 27 September 2004 and was not attended by Ms Bahonko though she had been invited to attend. On 14 October 2004, in its written determination, the Panel found that Ms Bahonko "had engaged in unprofessional conduct of a serious nature". It appears from the Panel's reasons for determination that a number of witnesses appeared at the hearing and the NBV was represented by counsel and Russell Kennedy solicitors. The Panel found that Ms Bahonko showed "a consistent refusal to accept direction that appears to the Panel to be deliberate, repeated and inexcusable". The Panel went on to find that her attitude towards the investigation and hearing was corroborative of the evidence "given in relation to Ms Bahonko's inability to take direction from her professional superiors". 36 The Panel determined to lift the suspension of Ms Bahonko's registration as a nurse and impose the following restrictions on her registration: 1. That Ms Bahonko work under clinical supervision for a period of six months following her return to work as a registered nurse; 2. That Ms Bahonko's employer/s provide a report or reports in writing to the Board in relation to her work performance every three months, for two years following her return to work as a registered nurse; 3. That Ms Bahonko undertake counselling with a registered psychologist, approved by the Board, for a period of two years with a therapeutic focus on improving her communication and team-building skills, and that reports on the compliance with counselling be provided by the psychologist to the Board on a confidential basis every three months; 4. That Ms Bahonko supply the Board with the name of the registered psychologist with whom she proposes to undertake counselling within one month of the date of the reasons for this determination; and 5. That Ms Bahonko successfully complete a course in medication administration, approved by the Board, of at least two days' duration.
Case: Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492
Outcome: cited
Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct.
Case: Bahonko v Sterjov [2007] FCA 115
Outcome: applied
As to the extension of the jurisdiction of this Court, I know of no basis upon which I can extend the jurisdiction of this Court to include criminal jurisdiction: see also Bahonko v Sterjov [2007] FCA 115 at [17] per Jessup J. Therefore, to the extent that application is made seeking to pursue such orders, it should be dismissed. 130 The applicant gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) that this proceeding involved a constitutional matter arising under the Constitution or involving its interpretation. The relevant notice was given by Ms Bahonko to the Attorneys-General of the Commonwealth and of the States, but none of the Attorneys-General made any submissions to the Court. 131 The notice of a constitutional matter, filed with the Court on 17 May 2007, does not provide much indication of the nature of the alleged constitutional matter, save from mentioning s 117 of the Constitution . In the notice, Ms Bahonko made a number of assertions, none of which amount to any proper issue arising under the Constitution or a matter involving its interpretation. Instead, she rehearsed the facts and made a number of bald assertions. There is simply no material to support any claim that any provision of the Constitution has been breached in the way asserted by Ms Bahonko.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: cited
Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act.
Case: Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566
Outcome: cited
In relation to Ms Bahonko's submissions on the Equal Opportunity Act 1995 (Vic), it must be noted that Ms Bahonko does not seek any relief in her application under that Act. Therefore, even if the Court had jurisdiction to hear a matter arising under that Act, no such matter arises in this proceeding against the NBV or the Minister. There is certainly no evidence that the procedures required to be followed in that Act were followed. Ms Bahonko did not file a complaint with the Commission (as that term is defined in that Act) or that such complaint was referred to VCAT. Further, and in any event, this Court has no jurisdiction to review a decision of the Commission (as defined in that Act) or VCAT, which is properly the subject of the jurisdiction of the Supreme Court of Victoria: see s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); s 211 of the Equal Opportunity Act 1995 (Vic); and Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566 per Weinberg J. 96 Accordingly, I consider the complaints relevant to Ms Bahonko's application to extend time are those relating to discrimination on the basis of race, descent, ethnic origin and imputed disability under the RDA and the DDA, and I will consider these on the basis of all the material put forward concerning such discrimination. 97 In order to properly consider Ms Bahonko's claims, it is necessary to set out s 9 of the RDA, which prohibits unlawful racial discrimination in the following terms: It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: cited
Further, and in any event, the application is an abuse of process, because it is foredoomed to fail: see Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393. Whilst Ms Bahonko is certainly aggrieved by a sequence of circumstances, I can find no basis to support any allegation of unlawful discrimination, and the respondents should not be further vexed by unjustifiable proceedings and forced to incur unnecessary costs. 126 Ms Bahonko's claims against Ms Saunders' conduct at the directions hearing on 1 September 2006 before Ryan J are misconceived. There is no evidence to suggest that Ms Saunders has been involved in "deception/fraud" or "obstruction of justice, trickery, frauds, making false statements" on 1 September 2006. There is nothing to suggest that the actions of Ms Saunders were taken other than in the interests of her client and in accordance with her duties to the Court. Accordingly, the orders sought should not be made and the motion will be dismissed. 127 Ms Bahonko made allegations of contempt of this Court against the NBV, the Minister, the Victorian Government Solicitors, Russell Kennedy and Dr Entwisle by way of various motions. She also filed a notice of motion dated 28 May 2007 with an accompanying statement of charge. Her claims focused on their involvement generally in these proceedings, including the bringing of the summary dismissal applications, their management of the evidence in this proceeding, their perceived conflicts of interest, and their applications seeking to appoint a guardian. The crux of her submission was that their behaviour amounted to protection of the primary offenders, and was generally misleading to the Court.
Case: Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
Case: R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
Case: Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
Case: O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.
Case: Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533
Outcome: referred to
His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community.