mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 
Outcome: referred to
More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell &amp; Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 7 Gunns submits that costs should follow the event. Gunns points to the practice of this Court that ordinarily costs follow the event. In that case, the unsuccessful party pays the costs of the successful party, the principle being that the successful party is compensated for the costs of running a successful case. In support of that proposition, Gunns points to a number of authorities including Latoudis per Mason CJ at 543, where his Honour states that: costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings ...
Case: Mees v Kemp (No 2) [2004] FCA 549
Outcome: cited
There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] .
Case: R v Industrial Disputes Tribunal; ex parte American Express Co Inc [1954] 2 All ER 764
Outcome: distinguished
In support of that proposition, TWS points to authority that where two defendants have in effect common cause only one set of costs should be awarded; R v Industrial Disputes Tribunal; ex parte American Express Co Inc [1954] 2 All ER 764; Sorell Council v State of Tasmania (No 2) [2004] TASSC 101. Both cases can be distinguished from the present case on the basis that the successful defendants were joined on their own application and, in the latter case, the ultimately unsuccessful plaintiff enjoyed partial success on some minor points.
Case: Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 
Outcome: applied
More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell &amp; Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. 18 TWS relies on the existence of the Court's discretion not to award costs in favour of a successful party. In particular, TWS submits that the public interest nature of the proceedings is a recognised basis for departing from the usual order as to costs: see, Ruddock per Black CJ and French J at 236 who said that despite the difficulties associated with the broad meaning of the 'public interest': The term may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event.
Case: South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411
Outcome: cited
There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] .
Case: Sorell Council v State of Tasmania (No 2) [2004] TASSC 101
Outcome: distinguished
In support of that proposition, TWS points to authority that where two defendants have in effect common cause only one set of costs should be awarded; R v Industrial Disputes Tribunal; ex parte American Express Co Inc [1954] 2 All ER 764; Sorell Council v State of Tasmania (No 2) [2004] TASSC 101. Both cases can be distinguished from the present case on the basis that the successful defendants were joined on their own application and, in the latter case, the ultimately unsuccessful plaintiff enjoyed partial success on some minor points.
Case: The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179
Outcome: cited
In the alternative, TWS submits that the Minister should only be awarded 50% of his costs. The reason for the submission is that two applications where brought challenging the Minister's decisions on substantially identical grounds, one by TWS and one by The Investors for the Future of Tasmania Inc (IFT): see, The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179. Both cases were heard together and evidence in one was evidence in the other. Therefore, in order to justly compensate the Minister only a 50% award of costs is justified against TWS and likewise a 50% award against IFT. 26 In regard to Gunns' costs, as stated, TWS submits that Gunns should not be awarded its costs. TWS points to a number of reasons why this should be additional to the public interest considerations outlined above. TWS submits that there was no reason for Gunns to actively participate in the proceeding because the proceeding brought by TWS sought only to impugn the decisions of the Minister. Accordingly, Gunns' case was entirely derivative of the Minister's case and there was no need for it to defend the proceeding. In support of this proposition, TWS says that the EPBC Act is not intended to protect the interests of proponents such as Gunns. Any commercial imperative or discrete commercial interest that a proponent might have is extraneous to the EPBC Act and the only interest that Gunns can be said to have is that the Minister's decisions are made according to law. That interest was always going to be properly defended by the Minister, so it is submitted.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang &amp; Ors [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
the extent that the appellant calls upon this Court to re-examine the underlying merits of the Tribunal's decision or consider "afresh" the decision reached by the Tribunal, it simply cannot do so. If the Tribunal misconceived the question to be addressed in conducting its review or failed to correctly identify the elements of the law to be applied or failed to exercise the jurisdiction conferred upon it by failing to examine the central evidence relied upon by the appellant as a basis for his contended well-founded fear of persecution or failed to comply with s 424A of the Migration Act , a basis for review by this Court of the Tribunal's decision on grounds of jurisdictional error, arises. Otherwise, at least so far as this case is concerned in the context of the appellant's claims, he simply seeks a review by this Court of the underlying merits of the administrative decision of the Tribunal as an exercise of executive power. It is not open to this Court to undertake that task (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang &amp; Ors [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey J, McHugh J and Gummow J adopting the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 and 36). The question to be determined is whether there is error on the part of the Tribunal in the exercise of its review jurisdiction not error in the sense of whether a different decision might or could have been reached as a matter of decision-making, concerning the various facts put before the Tribunal in support of the protection visa application.
Case: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Outcome: cited
the extent that the appellant calls upon this Court to re-examine the underlying merits of the Tribunal's decision or consider "afresh" the decision reached by the Tribunal, it simply cannot do so. If the Tribunal misconceived the question to be addressed in conducting its review or failed to correctly identify the elements of the law to be applied or failed to exercise the jurisdiction conferred upon it by failing to examine the central evidence relied upon by the appellant as a basis for his contended well-founded fear of persecution or failed to comply with s 424A of the Migration Act , a basis for review by this Court of the Tribunal's decision on grounds of jurisdictional error, arises. Otherwise, at least so far as this case is concerned in the context of the appellant's claims, he simply seeks a review by this Court of the underlying merits of the administrative decision of the Tribunal as an exercise of executive power. It is not open to this Court to undertake that task (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang &amp; Ors [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey J, McHugh J and Gummow J adopting the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 and 36). The question to be determined is whether there is error on the part of the Tribunal in the exercise of its review jurisdiction not error in the sense of whether a different decision might or could have been reached as a matter of decision-making, concerning the various facts put before the Tribunal in support of the protection visa application.
Case: SZBYR &amp; Anor v Minister for Immigration and Citizenship &amp; Anor [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: cited
appellant says that the Tribunal failed to comply with s 424A(1)(a) of the Migration Act by relying on information not put to the appellant and not discussed with the appellant in reaching its decision. That contention fails to identify the information relied upon by the Tribunal and not put to the appellant. In that sense, the claim or ground of appeal is lacking any content at all. There is simply no information identified by the appellant which would fall within s 424A(1). The Tribunal is not required to put its reasoning process to the appellant or the content of its proposed reasons to be published, to enable the appellant to comment before making the decision ( SZBYR &amp; Anor v Minister for Immigration and Citizenship &amp; Anor [2007] HCA 26 ; (2007) 235 ALR 609 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [17]). In any event, the Tribunal by its letter of 22 August 2007 put to the appellant the series of inconsistencies about which it was concerned. However, all of that information derived from material put by the appellant to the Tribunal.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW &amp; Ors [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
appellant also contends that the Tribunal relied upon independent country information and to the extent that the appellant rests his belief that the Tribunal contravened s 424A(1) because it failed to provide details of that information to him, it is clear that the Tribunal has no obligation to put independent country information to him under s 424A(1)(a) as that information is information "not specifically about [the appellant]" and is simply "about a class of persons of which [the appellant] is a member" and is thus within the exception in s 424A(3)(a) ( Minister for Immigration and Multicultural and Indigenous Affairs v NAMW &amp; Ors [2004] FCAFC 264 ; (2004) 140 FCR 572 per Beaumont J at [66] to [70]; per Merkel and Hely JJ at [123] to [138]). In any event, the Tribunal put to the appellant independent country information relating to formation of the Liberal Party and noted the inconsistency between that information and the appellant's evidence as to when and how he became involved with the Freedom Party. The appellant also contends that the Tribunal failed to provide him with details of "the derivation of adverse evidence which might affect a consideration of whether the information is reliable". That failure was said to be a contravention of s 424A(1)(b) which is an obligation imposed upon the Tribunal to ensure, as far as is reasonably practicable, that the appellant understands why the information is relevant to the review and the consequences of the information being relied upon in affirming the decision under review. The Tribunal's letter of 22 August 2007 makes very clear the identified inconsistencies, the Tribunal's concern about those inconsistencies and the consequences for the review of the delegate's decision should the Tribunal rely upon the inconsistencies in forming a view about the appellant's credibility. There is no basis in the claim that the Tribunal, in electing to issue its letter of 22 August 2007, failed to properly draw these matters to the appellant's attention. The appellant by his notice of appeal contends that Federal Magistrate Cameron erred by incorrectly interpreting the relevant law and incorrectly applied the relevant law to the facts. There is simply no content to the ground of appeal and no demonstrated error on the part of Federal Magistrate Cameron.
Case: Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726
Outcome: referred to
On 14 June 2006, I delivered reasons for judgment and ordered that there be summary judgment for the applicant against the respondents: Nokia Corporation v Cellular Line Australia Pty Ltd [2006] FCA 726 (" Nokia "). I assume familiarity with those reasons. At [61] I noted that: "At the hearing, I suggested to the parties that they might turn their minds to whether or not costs should be equally proportioned between the respondents. It seemed to me that the third and fourth respondents had not seriously contested the summary judgment motion; and that this should be reflected in any costs order. I also noted, and counsel for Nokia agreed, that the third and fourth respondents were alleged to have engaged in a lower volume of infringing conduct than the first and second respondents. I proposed to hear the parties on the matter of costs after delivering these reasons." I ordered that the parties file written submissions on costs. The disposition of costs now falls for determination. 12 The second respondent is a manager of the first respondent. In Nokia at [56], I found that no other person plays an active role in the first respondent's business. I accept the applicant's submission that, in these circumstances, any costs order against these respondents should bind them jointly and severally. 13 Aside from the close link between the first and second respondents, there are no other links between the respondents. The businesses of the third and fourth respondents are totally independent. Therefore, I find that costs should be apportioned amongst the respondents upon the basis the applicant has proposed. 14 As a starting point, I accept the evidence of Mr Merrick concerning the proportion of the costs attributable to each respondent. These figures were based on his review of the applicant's files. Mr Merrick's estimates are also commensurate with my sense of the scale of the case against each of the respondents. Therefore, I find it appropriate to order that the first and second respondents should bear 60% of the costs of the proceeding. Similarly, I would order that the third respondent pay 20% of the costs of the proceeding.
Case: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496
Outcome: referred to
The applicant submitted, first, that costs should follow the event. Citing Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496, the applicant claimed that there were no special circumstances that warranted departing from the general rule. 3 With respect to apportionment, the applicant relied on an affidavit sworn by Luke Andrew Merrick on 23 June 2006. Mr Merrick states that he maintained three separate files in relation to this proceeding. One file related to the first and second respondents and the other files related to the third and fourth respondents respectively. Mr Merrick said that he had reviewed the time recording and disbursement records maintained in respect of each of these files and that, based on this review, he estimated that the applicant's costs are properly attributable as follows: (1) 60% in respect of the first and second respondents; (2) 20% in respect of the third respondent; and (3) 20% in respect of the fourth respondent. 4 The applicant also submitted that, as the Court has found that the second respondent is the guiding mind of the first respondent, any order for costs made against those parties should bind them jointly and severally.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. In this case, I have ordered summary judgment against the respondents. Thus, absent special circumstances, the respondents should pay the applicant's costs. 9 Whilst I am aware of the third respondent's position, he has not advanced any justification, which, as a matter of law, would permit a departure from the general rule as to costs.
Case: Calderbank v Calderbank [1975] 3 All ER 333
Outcome: referred to
As noted already, the fourth respondent argued that there should be no costs ordered against him because he admitted selling counterfeit products and because the case against him could have settled. I am also not satisfied, however, that there are sufficient grounds for departing from the general rule with respect to the fourth respondent. It is clear from the evidence that the applicant sought to place the fourth respondent on notice that proceedings might be filed. It may well be that, after further negotiations, settlement could have been reached between the applicant and the fourth respondent. The fourth respondent has not, however, alleged and shown that the applicant rejected an offer of compromise. Thus, the principles of Calderbank v Calderbank [1975] 3 All ER 333 do not apply. While the fourth respondent's admissions, which were made after the institution of the proceedings, may be relevant as to what costs should be ordered against him (see [15] below) these admissions are not sufficient to avoid a costs order altogether. 11 The first and second respondents have not contended that costs should not be awarded against them according to the ordinary rule. I see no reason why they too should not pay costs. The remaining issue, therefore, is apportionment.