mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Calderbank v Calderbank [1975] 3 All ER 333
Outcome: cited
Another instance of an appropriate case is where one party has unreasonably refused an offer to compromise. The principle is derived from Calderbank v Calderbank [1975] 3 All ER 333. A party may set up a situation in which an award of indemnity costs is possible by making a reasonable offer of compromise in what is described as a "Calderbank letter", containing the terms of the offer and signifying that the letter will be relied upon to found an application for costs on an indemnity basis in the event that it turns out that the offer ought to have been accepted. To some extent, O 23 of the Federal Court Rules now codifies the circumstances in which refusal of an offer of compromise will found an application for indemnity costs. The area of law has become beset by technicality, much of which appears to me to be unnecessary. Arguments were raised in the present case about whether letters written by one party or another did or did not fit within what the authorities would regard as a Calderbank letter. In particular, it was said that there must be a true offer to compromise, involving the giving of something, and not merely a demand that the other party capitulate. I am by no means certain that this is a universal rule. Whatever the terms of any letter, or other means of conveying an offer of compromise, the question at heart must remain whether the unsuccessful party to the case pursued it unreasonably, having regard to the circumstances at any particular time. As the Full Court said in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 259: It was argued that conditional offers should not have been treated by his Honour as Calderbank offers for the purpose of ordering indemnity costs. It is to be emphasised that the costs discretion is broad and is to be exercised in circumstances that will vary considerably from case to case. Whilst the criteria used in analogous circumstances will be of assistance it is simply wrong...to use such criteria as rules or tests governing the exercise of the discretion. Thus, an "imprudent" refusal or a "plainly unreasonable" refusal to accept an offer of settlement might, having regard to all the circumstances of the case, warrant the making of an order for indemnity costs if it is "just" to do so...However, such circumstances merely offer examples of where indemnity costs are ordered. Likewise, in some situations a conditional offer may be less likely to attract the Court's discretion to order indemnity costs than others. Much will depend upon the reasonableness of the offer and of [ sic ] the reasonableness of the conduct of the other party in refusing it having regard to all the circumstances of the case.
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
There is no doubt that the Court has power to order indemnity costs, or costs assessed on a basis lying somewhere between indemnity costs and party-party costs, in an appropriate case. It must be recognised that an appropriate case will only be one in which the circumstances justify the Court in departing from the usual rule that costs awarded will be calculated on a party-party basis. It is impossible to provide a comprehensive definition of what is an appropriate case. In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234, Sheppard J set out principles that his Honour derived from the authorities. Those principles are summarised in the judgment of the Full Court in Hamod v State of New South Wales [2002] FCAFC 97 (2002) 188 ALR 659 at [20] : 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: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Outcome: cited
One instance of an appropriate case for indemnity costs is described as follows by Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401: I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
Case: Hamod v State of New South Wales [2002] FCAFC 97 (2002) 188 ALR 659
Outcome: cited
There is no doubt that the Court has power to order indemnity costs, or costs assessed on a basis lying somewhere between indemnity costs and party-party costs, in an appropriate case. It must be recognised that an appropriate case will only be one in which the circumstances justify the Court in departing from the usual rule that costs awarded will be calculated on a party-party basis. It is impossible to provide a comprehensive definition of what is an appropriate case. In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234, Sheppard J set out principles that his Honour derived from the authorities. Those principles are summarised in the judgment of the Full Court in Hamod v State of New South Wales [2002] FCAFC 97 (2002) 188 ALR 659 at [20] : 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: In re A Solicitor's Clerk [1957] 1 WLR 1219 
Outcome: considered
The applicant submitted that s 49 was intended to apply to conduct occurring between 9 March and 12 September 2005. That approach to s 49 was based upon a series of decisions which commenced with In re A Solicitor's Clerk [1957] 1 WLR 1219. The case concerned legislation which prohibited the continued employment as a solicitor's clerk of a person who had previous convictions for offences of dishonesty. The relevant legislation had, at one stage, applied to a solicitor's clerk who was convicted of larceny, embezzlement, fraudulent conversion or any other criminal offence in respect of money or property belonging to, or held by, the solicitor who employed him or her, or any client of such solicitor. The Act was amended so that it applied to a solicitor's clerk who had been convicted of larceny, embezzlement or fraudulent conversion of any money or property, regardless of who owned or controlled it. The question was whether the amendment applied to a clerk who had been convicted of such an offence prior to the amendment. In the Queen's Bench Division Lord Goddard CJ said, at 1222-1223 (Barry and Havers JJ concurring): In all editions of Maxwell on the Interpretation of Statutes it is stated that it is a fundamental rule of English law that no statute should be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by a necessary or distinct implication and this passage has received judicial approval by the Court of Appeal ... . But in my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.
Case: La Macchia v Minister for Primary Industries (1986) 72 ALR 23 
Outcome: considered
In La Macchia v Minister for Primary Industries (1986) 72 ALR 23 , the Full Court considered a provision pursuant to which the relevant minister might cancel a fishing licence if the holder were convicted of certain offences. That section took effect from 31 August 1985. On 13 June 1985 one joint licence holder was convicted of a relevant offence. On 14 October 1986 the minister decided to cancel the licence. The question was whether or not the minister was entitled to do so upon the basis of a conviction recorded prior to the commencement of the legislation authorizing such cancellation. At 26-27, Toohey J (Bowen CJ concurring) said: There are, I think, only two other matters in the applicant's case that call for comment. The first is the argument that, in relying upon a power in section 9A(3A) which did not exist at the time of the conviction of Mr La Macchia, a penal power was exercised retrospectively. There are two answers to this contention. The first is that the Minister was not exercising a penal power even though cancellation imposed a hardship on the applicants by depriving them for a time of their ability to fish commercially. Cancellation is not part of the penalty a Court of Petty Sessions may impose. It is part of the scheme of the Act which seeks to control commercial fishermen in their fishing activity. Rock lobsters are a valuable common property resource and activities damaging the resources are hard and costly to police. The power of cancellation is an important aspect of the system of control and should be seen in that light. Secondly, while the Minister could not have given notice prior to the sub-section coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the sub-section came into operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under sub-section (3A). The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed ... .
Case: The Commonwealth v SCI Operations [1998] HCA 20 ; (1998) 192 CLR 285 
Outcome: considered
Finally, in The Commonwealth v SCI Operations [1998] HCA 20 ; (1998) 192 CLR 285 , at 309 McHugh and Gummow JJ referred with apparent approval to an observation by Jordan CJ in Coleman v Shell Company of Australia (1943) 45 SRNSW 27 at 30-31. His Honour said, concerning the retrospective operation of statutes: As to the first question, it is to be noted that there has been some ambiguity in the use of the word "retrospective". In some cases, it has been said that it would give a retrospective operation to a statute to treat it as impairing an existing right or obligation or creating a new right or obligation ... . On the other hand it was said ... that an Act is retrospective if it provides that as at past date the law shall be taken to have been that which it was not. It is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future. Similarly it has been said that an amendment of a section in an Act makes it retrospective in its original form but not retrospective so far as it is new ... . Upon a consideration of the authorities, I think that as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, But it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.
Case: Coleman v Shell Company of Australia (1943) 45 SRNSW 27 
Outcome: considered
Finally, in The Commonwealth v SCI Operations [1998] HCA 20 ; (1998) 192 CLR 285 , at 309 McHugh and Gummow JJ referred with apparent approval to an observation by Jordan CJ in Coleman v Shell Company of Australia (1943) 45 SRNSW 27 at 30-31. His Honour said, concerning the retrospective operation of statutes: As to the first question, it is to be noted that there has been some ambiguity in the use of the word "retrospective". In some cases, it has been said that it would give a retrospective operation to a statute to treat it as impairing an existing right or obligation or creating a new right or obligation ... . On the other hand it was said ... that an Act is retrospective if it provides that as at past date the law shall be taken to have been that which it was not. It is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future. Similarly it has been said that an amendment of a section in an Act makes it retrospective in its original form but not retrospective so far as it is new ... . Upon a consideration of the authorities, I think that as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, But it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.
Case: Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19 
Outcome: applied
I have cited these passages at some length because the applicant assumed that these cases establish that the various statutory provisions relating to parties to offences reflected the position at common law in connection with torts. However, in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyd's Rep 19 the Court of Appeal rejected that proposition. See, in particular, the judgment of Stuart-Smith LJ at 35-36 and that of Hobhouse LJ at 42-46. Hobhouse LJ identified three categories of conduct by a person other than the actual perpetrator which might attract criminal liability. They were: &#8226; those who solicit or incite another to commit a crime or conspire with another to commit a crime; &#8226; those who aid another in the commission of a crime, often known as "aiding, abetting, counselling and procuring"; and &#8226; principals whose agents commit offences.
Case: Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [2000] 1 AC 486
Outcome: cited
His Lordship concluded, at 46, that only conduct which fell into either the first or the third category would constitute a tort at common law. In other words, at common law, aiding, abetting, counselling and procuring was not a basis for tortious liability. On appeal to the House of Lords (reported at [2000] 1 AC 486) the decision of the Court of Appeal was upheld, although on slightly different grounds. Their Lordships observed that the criminal law might not offer a good guide to accessorial liability in tort. See the speech of Lord Wolfe MR at 496-500 (Lord Slynn, Lord Steyn, Lord Clyde and Lord Millett agreeing).
Case: Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 
Outcome: discussed
In Thompson v Australian Capital Television Ltd [1996] HCA 38 ; (1996) 186 CLR 574 the High Court considered accessorial liability in tort. At 580-1 Brennan CJ, Dawson and Toohey JJ said: ... (F)or there to be joint tort feasors there must be a concurrence in the act or acts causing damage ... (T)o constitute joint tort feasors two or more persons must act in concern in committing the tort. 42 As with the decision in Credit Lyonnais these propositions were largely based upon the decision of the Court of Appeal in The "Koursk" [1924] P 140. In Thompson at 600, Gummow J said, concerning the judgments in The "Koursk" : Scrutton LJ ... there spoke of "two persons who agree on common action, in the course of, and to further which, one of them commits a tort", saying that in such a case there is one tort committed by one of them "in concert with another". Sargant LJ ... accepted the proposition that persons are joint tort feasors when their "respective shares in the commission of the tort are done in furtherance of a common design" so that those who "aid or counsel, direct, or join" in commission of the tort are joint tort feasors ... .
Case: The "Koursk" [1924] P 140
Outcome: considered
As with the decision in Credit Lyonnais these propositions were largely based upon the decision of the Court of Appeal in The "Koursk" [1924] P 140. In Thompson at 600, Gummow J said, concerning the judgments in The "Koursk" : Scrutton LJ ... there spoke of "two persons who agree on common action, in the course of, and to further which, one of them commits a tort", saying that in such a case there is one tort committed by one of them "in concert with another". Sargant LJ ... accepted the proposition that persons are joint tort feasors when their "respective shares in the commission of the tort are done in furtherance of a common design" so that those who "aid or counsel, direct, or join" in commission of the tort are joint tort feasors ... .
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 
Outcome: considered
The conduct identified in paras (a) and (d) would, almost certainly, have been the conduct of employers or employees. However the conduct identified in paras (b) and (c) may have been the conduct of others. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 30-31, French J observed, concerning a similar provision in the WR Act: While par (a) of the definition relates to the "performance of work", par (b) is more broadly expressed. It refers to "a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work". The central meaning of the term "ban" in the industrial, as in its ordinary usage, is to "prohibit or interdict": the Macquarie Dictionary. Communication between persons or an organization and persons is essential to a "ban". And while the notion of "limitation" or "restriction" may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed. In the ordinary course such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work, it is industrial action because of its instrumental character. Notwithstanding that it is communication it falls within the terms of the definition. 51 At 32, his Honour continued: So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purposes of s 127."
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 
Outcome: followed
The applicant submitted that in fixing civil penalties, the Court should take account of the views of any relevant regulator as a specialist body, but that such views should not be treated as determinative. As much appears to be established by the decision of the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. Accepting that decision as I must, I observe only that considerable care must be exercised in so doing, particularly where the regulator is a party to the proceedings. Such "views" must be more than bald assertions of the desired outcome in a particular case, or of the regulator's policy. One would expect some factual basis to be demonstrated for the views so advanced. A respondent might expect an opportunity to test the views and the facts upon which they are allegedly based. In other words, it may be necessary for the regulator to provide admissible lay and expert evidence. The Court cannot treat a statement as relevant if it is really only an opinion or statement of preferred outcome. I do not understand this issue to loom large in the present case. 58 The applicant's submissions deal in some detail with the purpose of the WR Act and the BCII Act, pointing to various reasons for treating breaches of industrial legislation as relatively serious. I doubt, however, whether such considerations are of particular relevance in a case such as this where the relevant conduct was limited in scope and effect. All legislation which prescribes penalties, criminal or otherwise, has the purpose of deterring conduct which is deemed to be undesirable. The important point is that the penalty be sufficiently substantial to act as an appropriate deterrent, having regard to matters which may tempt persons to infringe. The penalty must also be proportionate to the infringing conduct. 59 I infer that the First Strike action substantially disrupted work on the Ravensthorpe project. It lasted for 48 hours and involved about 400 workers. It may be, however, that little work would have been done at that time in any event. Weather conditions were unfavourable. No attempt was made to negotiate with the employers prior to taking industrial action. Such pre-emptive action may be attractive to workers and unions. Minimal notice of industrial action probably maximises disruptive effect. It is said that the contraventions "were in manifest defiance of the law". That may be so. However the statement of agreed facts demonstrates that neither Mr Powell nor Mr McDonald directly instigated any discussion concerning strike action. It may be that they deliberately created a situation from which such action was calculated to emerge, but there is no evidence to that effect.