mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Abbott v Random House Australia Pty Ltd [1999] FCA 1540
Outcome: referred to
The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and the Federal Court Rules (Cth), O 62. In that case, Sheppard J considered the circumstances in which indemnity costs might be awarded, referring, amongst other things, to "misconduct that causes loss of time to the Court and to other parties" although, as his Honour concluded, "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-234. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-153 per Black CJ and 156-158 per Cooper and Merkel JJ. In Re Wilcox , at 156-157, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.
Case: Hamod v State of New South Wales [2002] FCA 424 ; (2002) 188 ALR 659
Outcome: followed
The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and the Federal Court Rules (Cth), O 62. In that case, Sheppard J considered the circumstances in which indemnity costs might be awarded, referring, amongst other things, to "misconduct that causes loss of time to the Court and to other parties" although, as his Honour concluded, "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-234. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-153 per Black CJ and 156-158 per Cooper and Merkel JJ. In Re Wilcox , at 156-157, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.
Case: Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Outcome: approved
A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29]. 8 The same principles with regard to indemnity costs are applied in other Australian courts. In Ugly Tribe , Harper J referred (at [7]) to the need for special circumstances to justify departure from the usual rule, instancing "[c]onduct which causes loss of time to the Court and to other parties" and "[t]he failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial". As his Honour said, however, "[t]he categories of special circumstances are not closed". As Mason P, with whom Meagher JA and Clarke A-JA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order.
Case: Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785
Outcome: referred to
A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29].
Case: Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Outcome: referred to
The same principles with regard to indemnity costs are applied in other Australian courts. In Ugly Tribe , Harper J referred (at [7]) to the need for special circumstances to justify departure from the usual rule, instancing "[c]onduct which causes loss of time to the Court and to other parties" and "[t]he failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial". As his Honour said, however, "[t]he categories of special circumstances are not closed". As Mason P, with whom Meagher JA and Clarke A-JA agreed, said in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616, "the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" before departing from the usual party and party costs order.
Case: Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187
Outcome: referred to
A perusal of other cases decided in this Court, including in recent times, shows that these principles are regularly applied. In particular, the Court may award indemnity costs in respect of misconduct that causes loss of time to the Court and to other parties: see Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 per French J, referred to with approval in Colgate-Palmolive at 233 and Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 (" Ugly Tribe ") at [7] per Harper J. In Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 , Middleton J awarded indemnity costs to prevent the plaintiffs being out of pocket where "there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case ... and in the application for a restraining order": see [12]-[13], [29].
Case: Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168
Outcome: referred to
Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at [48] , Sackville J observed that there are good reasons to give s 33ZF a generous interpretation. His Honour did not refer expressly to the remarks of Wilcox J in McMullen , however the passage to which I have referred from McMullen was approved by Tamberlin J in Johnstone v HIH Limited [2004] FCA 190 at [103] - [104] .
Case: Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322
Outcome: referred to
seems that the authorities to which I referred in Taylor v Telstra suggest that there might be some slight difference of emphasis between the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459 and Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322. However, both of these approaches indicate that the essential question is whether the settlement is fair and reasonable having regard to the claims made by group members who will be bound by the settlement.
Case: Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19
Outcome: referred to
Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [56] to [66], I endeavoured to set out the principles which apply to the exercise of the power under s 33V to approve a settlement. The principles to which I referred were applied by Stone J in Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [10] . I will apply those principles in considering the present application.
Case: Johnstone v HIH Limited [2004] FCA 190
Outcome: referred to
Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at [48] , Sackville J observed that there are good reasons to give s 33ZF a generous interpretation. His Honour did not refer expressly to the remarks of Wilcox J in McMullen , however the passage to which I have referred from McMullen was approved by Tamberlin J in Johnstone v HIH Limited [2004] FCA 190 at [103] - [104] .
Case: King v GIO Australia Holdings Ltd [2001] FCA 270
Outcome: referred to
opt-out requirements of Part IVA are an important element of the scheme laid down by that part of the Act. In King v GIO Australia Holdings Ltd [2001] FCA 270 at [15] , a Full Court observed that these requirements ensure that group members can make an informed decision about their rights. The Full Court said at [15] and [16] that the opt-out notice must not mislead group members and must be expressed with clarity and simplicity. Section 33Y provides for the Court to approve the form and content of an opt-out notice. Section 33Y(2) would ordinarily also require the Court to approve the form and content of the notice to group members advising them of the settlement. Section 33ZB(b) provides that persons who exercise the right to opt out of a proceeding under s 33J are not bound by a judgment given in a representative proceeding.
Case: McMullen v ICI Australia Operations Pty Ltd (1998) 84 FCR 1
Outcome: followed
McMullen v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4, Wilcox J observed that the power in s 33ZF(1) was: intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding. His Honour expressed the view that Part IVA involved the introduction of a novel procedure and that it was at the time impossible to foresee all the issues that might arise in the operation of the Part. He said that for that reason, it was desirable to empower the Court to make orders necessary to resolve unforeseen difficulties. As his Honour observed, the only limitation is that the Court must consider the order to be appropriate or necessary to ensure that justice is done in the proceeding. In Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at [48] , Sackville J observed that there are good reasons to give s 33ZF a generous interpretation. His Honour did not refer expressly to the remarks of Wilcox J in McMullen , however the passage to which I have referred from McMullen was approved by Tamberlin J in Johnstone v HIH Limited [2004] FCA 190 at [103] - [104] .
Case: Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200 ; (2007) 164 FCR 275
Outcome: followed
Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd [2007] FCAFC 200 ; (2007) 164 FCR 275 , a Full Court considered the question of whether a compulsory funding agreement in similar terms to the funding agreement of the present matter contravened the opt-out nature of representative proceedings. Although not stated explicitly in Multiplex , it is clear enough from the analysis of the relevant provisions of Part IVA that s 33J and the right to opt out is an essential ingredient of the scheme. In spite of that, the Court came to the view that the conditions of the funding agreement which effectively imposed an opt-in requirement did not contravene the provisions of Part IVA. I observed at [149] that the execution of the funding agreement as a condition of inclusion in the represented group operates as a substantial practical disincentive to a group member to exercise the right to opt out of the proceeding. Although the appellants in that case submitted that this subverts a fundamental principle of Part IVA , I said at [150] that group members are nevertheless entitled to opt out, and I came to the view that the funding agreement did not contravene the provisions of Part IVA. French J (as his Honour then was) and Lindgren J agreed with the views that I expressed. I do not consider that Multiplex is authority for the proposition that the Court lacks power to dispense with the requirements of s 33J. I do not consider that the general dispensing power contained in s 33X(2) is applicable. However, in my view, there is power in s 33ZF to dispense with the requirements of opt-out notices.
Case: Taylor v Telstra Corporation Ltd [2007] FCA 2008
Outcome: followed
Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [56] to [66], I endeavoured to set out the principles which apply to the exercise of the power under s 33V to approve a settlement. The principles to which I referred were applied by Stone J in Dorajay Pty Ltd v Aristocrat Leisure Limited [2009] FCA 19 at [10] . I will apply those principles in considering the present application. It seems that the authorities to which I referred in Taylor v Telstra suggest that there might be some slight difference of emphasis between the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459 and Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322. However, both of these approaches indicate that the essential question is whether the settlement is fair and reasonable having regard to the claims made by group members who will be bound by the settlement.
Case: Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459
Outcome: referred to
seems that the authorities to which I referred in Taylor v Telstra suggest that there might be some slight difference of emphasis between the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 ; (2001) 180 ALR 459 and Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Limited (No 2) (2007) 236 ALR 322. However, both of these approaches indicate that the essential question is whether the settlement is fair and reasonable having regard to the claims made by group members who will be bound by the settlement.
Case: Bull v Repatriation Commission (2001) 188 ALR 756
Outcome: cited
also determined (at 97) that if no SoP were in force, the hypothesis will not be taken to be reasonable and in consequence the application must fail. Such observation has subsequently been disapproved: see Bull v Repatriation Commission (2001) 188 ALR 756 at [14]; Woodwood v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [55] ; and Repatriation Commission v Hancock [2003] FCA 711 ; (2003) 37 AAR 383 at [10] .
Case: Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476
Outcome: cited
Court has an unfettered discretion with regard to the award of a certificate, provided that the discretion is exercised judicially: see Bullock and Others v Federated Furnishing Trades Society of Australasia and Others (No. 2) (1985) 5 FCR 476 at 478. Whilst there is no presumption that an unsuccessful respondent is entitled to a certificate, in Repatriation Commission v Milenz [2007] FCA 50 , Finn J said at [4]: Given the beneficial purpose of the Veterans Entitlement legislation but accepting the appropriateness of the Repatriation Commission seeking to ensure that administrative decisions made under the Veterans Entitlements Act are made according to law, I consider it appropriate that the burden of making a respondent such as Mr Milenz bear the costs of the appeal in such circumstances undercuts the public interest served by the Federal Proceedings (Costs) Act : see Cornelius at [11]. I would emphasise that in granting a certificate I do take account of Mr Milenz' status as a war veteran though I do not consider it to be of decisive significance.
Case: Byrne v Repatriation Commission [2007] FCAFC 126 ; (2007) 242 ALR 620
Outcome: referred to
operation of such statutory provisions was summarised by Buchanan J in Byrne v Repatriation Commission [2007] FCAFC 126 ; (2007) 242 ALR 620. At [26] his Honour said: Subsection (3) of s 120 therefore contains a statutory direction that the Repatriation Commission (or, in this case, the AAT) is to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that an injury was a war-caused injury if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. By the use of that statutory direction the legislation fastens upon an opinion that no reasonable hypothesis is available and directs that it satisfy the onus of proof beyond reasonable doubt. In these circumstances the claim will be rejected.
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: cited
Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 the Full Court explained the method of the application of s 120(1) and (3) at page 91 where the Court said: The method of applying s 120(1) and (3) is now well established: (1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. See also Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.