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 O 62 of the Rules. In Colgate-Palmolive , Sheppard J referred to the circumstances in which indemnity costs might be awarded, mentioning, amongst other things, "the fact that the proceedings were commenced or continued ... in wilful disregard of known facts or clearly established law" and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions", though noting that "[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 233-34. 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 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ. In Re Wilcox , at 156-57, 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 New South Wales [2002] FCA 424 ; (2002) 188 ALR 659
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 O 62 of the Rules. In Colgate-Palmolive , Sheppard J referred to the circumstances in which indemnity costs might be awarded, mentioning, amongst other things, "the fact that the proceedings were commenced or continued ... in wilful disregard of known facts or clearly established law" and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions", though noting that "[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 233-34. 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 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ. In Re Wilcox , at 156-57, 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: Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785
Outcome: cited
Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J.
Case: Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974
Outcome: cited
Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J.
Case: Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903
Outcome: cited
Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J.
Case: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179
Outcome: cited
Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J.
Case: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Outcome: referred to
the appellant submitted that the Tribunal failed to invite him to appear before it, and, therefore, proceeded in breach of s 425(1) of the Act. As I have said, the Tribunal forwarded the letter dated 24 August 2005 containing the invitation to a hearing to the appellant's address for service. However, the Magistrate appears to have accepted the appellant's evidence to the effect that he had used a friend's address as his address for service. The friend had moved from that address and did not tell the appellant or the Tribunal. By the time the appellant found out about this and went to collect his mail, it was too late. The Magistrate held that the Tribunal had complied with s 441A of the Act and that there could be no jurisdictional error based merely on the appellant's failure to receive a notice. He referred to NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184. The Magistrate's conclusion was that the decision of the Tribunal was a privative clause decision within s 474 of the Act and that there was no jurisdictional error. He therefore dismissed the application. In essence, other than an impermissible challenge to the merits of the decision made by the delegate and then the Tribunal, the appellant submitted on appeal that the Magistrate had erred in rejecting the two grounds upon which he challenged the Tribunal's decision. As to the second ground of challenge, that also must fail. The evidence establishes that the Tribunal complied with the service provisions in s 441A(4) of the Act and therefore the provisions of ss 425 and 425A. The fact that the arrangement between the appellant and his friend broke down and the appellant did not receive the letter from the Tribunal dated 24 August 2004 until it was too late is of no consequence in terms of the Tribunal's obligation and the question whether there had been a failure to comply with the Act which vitiates the decision: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Tamberlin, Sackville and Hely JJ at [16]. The Tribunal complied with the provisions of the Act and was entitled to proceed to make a decision on the review: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407.
Case: SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Outcome: referred to
to the first ground of challenge, I see no error in the reasoning of the Magistrate. What the Tribunal member emphasised was the lack of information. On the authorities, that is not information within the terms of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Finn and Stone JJ at [24]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. It is no more than the Tribunal's subjective appraisal of the material before it.
Case: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
Outcome: referred to
appellant lodged an application with the Federal Magistrates Court of Australia under s 476 of the Act. He challenged the Tribunal's decision on two grounds. First, he submitted that the Tribunal had not given to him particulars of information that it considered would be the reason or a part of the reason for affirming the decision that was under review within the provisions of s 424A(1) of the Act. The Magistrate rejected that submission on the ground that the reason for the Tribunal's decision was the inadequacy of the material provided to the Tribunal, and inadequacy of a claim is not 'information' for the purposes of s 424A of the Act. The Magistrate said that inadequacy of information is no more than a subjective appraisal by the Tribunal about the material provided and a subjective appraisal of the material does not constitute information for the purpose of s 424A. The Magistrate referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
appellant lodged an application with the Federal Magistrates Court of Australia under s 476 of the Act. He challenged the Tribunal's decision on two grounds. First, he submitted that the Tribunal had not given to him particulars of information that it considered would be the reason or a part of the reason for affirming the decision that was under review within the provisions of s 424A(1) of the Act. The Magistrate rejected that submission on the ground that the reason for the Tribunal's decision was the inadequacy of the material provided to the Tribunal, and inadequacy of a claim is not 'information' for the purposes of s 424A of the Act. The Magistrate said that inadequacy of information is no more than a subjective appraisal by the Tribunal about the material provided and a subjective appraisal of the material does not constitute information for the purpose of s 424A. The Magistrate referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. As to the first ground of challenge, I see no error in the reasoning of the Magistrate. What the Tribunal member emphasised was the lack of information. On the authorities, that is not information within the terms of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Finn and Stone JJ at [24]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. It is no more than the Tribunal's subjective appraisal of the material before it.
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407
Outcome: referred to
to the second ground of challenge, that also must fail. The evidence establishes that the Tribunal complied with the service provisions in s 441A(4) of the Act and therefore the provisions of ss 425 and 425A. The fact that the arrangement between the appellant and his friend broke down and the appellant did not receive the letter from the Tribunal dated 24 August 2004 until it was too late is of no consequence in terms of the Tribunal's obligation and the question whether there had been a failure to comply with the Act which vitiates the decision: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Tamberlin, Sackville and Hely JJ at [16]. The Tribunal complied with the provisions of the Act and was entitled to proceed to make a decision on the review: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407.
Case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951
Outcome: applied
practice application arises because of a perception, which is not ill-founded, on behalf of the Applicants that there has been a studied non-compliance by the Third, Fourth and Fifth Respondents which directions made in respect of the management of this case. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 (Aon Insurance), has recently emphasised the role of case management in the modern era in the conduct of litigation. It is the practice of this Court, and has been since its inception, for cases actively to be managed by judges. Directions in respect of interlocutory steps in a case given by a judge are not aspirational statements. The particular events of non-compliance are helpfully summarised in a table which forms part of the submissions made on behalf of the Applicants which is annexure A to the reasons for judgment. It does seem that the Third, Fourth and Fifth Respondents are not disposed to ignore Court orders in the sense that eventually there is compliance of sorts. That does not though mean that there is not an event of default of a kind which enlivens a jurisdiction under O 35A r 2 of the Federal Court Rules to give default judgment. The case is one listed for mediation on 27 November 2009. That is a factor I take into account in deciding whether to give default judgment as requested.
Case: Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: considered
Moreover, I am of opinion that it was erroneous for his Honour to have taken the view that the appellant's participation in the class actions was a matter in which he should be taken as having accepted the correctness of the Tribunal's decision, if that is a reading that is open on the materials. There is a number of reasons why people take other proceedings or do not challenge on all possible grounds in one proceeding, decisions which may be not perceived to be in their interest. For example, in Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589 at 603, Gibbs CJ and Mason and Aickin JJ said that there was a variety of circumstances why a party might justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings. Examples were the expense, the importance of the particular issue, and motives extraneous to the actual litigation which they said was to mention but a few. 27 Here the appellant, apparently, on legal advice was told to join in two separate and, apparently, consecutive class actions that consumed a great deal of the period relied on as a delay. One can understand why, if he were advised that either of those class actions could afford him relief so that the decision against him could be reviewed, he may decide that it would save him the expense of litigating his own individual proceedings to do so. 28 I am of opinion that it was not open to his Honour to draw an adverse inference as to delay against the appellant that he chose to join in the Macabenta class action, albeit on advice, immediately after the adverse tribunal decision. His Honour noted that the appellant's involvement in those proceedings did not directly challenge the decision now under review. Nonetheless, as his Honour recognised, what the appellant was doing was seeking to obtain an objective, mainly, to secure his refugee protection status. The fact that he chose, perhaps ill advisedly, one rather than another avenue of redress to achieve the same end and, even if he did so on legal advice, does not necessarily lead to a conclusion that the delay was unwarranted or inexcusable when he came to challenge the decision in the proceedings below or here.
Case: R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389
Outcome: discussed
Indeed, in R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the constitutional writ of mandamus was not a writ of right and was not issued as of course. There were well recognised grounds upon which the court may, at its discretion, withhold the remedy. They noted that the writ may not be granted if a more convenient and satisfactory remedy exists. They went on to say that another ground was that if no useful result would ensue or if the party had been guilty of unwarrantable delay or if there had been bad faith on the part of the applicant, either in the transaction over which the duty to be enforced arose or towards the court to which the application is made. But, they said: 'The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' Again, their Honours, in this passage, were dealing with constitutional writ relief, albeit for a writ of mandamus. (Here the trial judge refused orders for certiorari and mandamus.) The High Court noted that one reason to refuse the writ was whether there was a more convenient and satisfactory remedy. 30 The class actions which had been joined by the appellant could have resulted in his matter being reconsidered and the point he now wishes to take could have been reventilated before the Tribunal afresh. It is possible to see that a more convenient and satisfactory remedy was achievable for the appellant in pursuing the substantive class actions. They could have resulted in more sweeping relief quashing a large number of the Tribunal's decisions and requiring a reconsideration of them. Indeed, the result of those proceedings may have affected any reconsideration by the Tribunal of the appellant's case. 32 Their Honours referred to the passage above from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and to an observation by Lord Denning MR, in F. Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he did not come with due diligence and ask for it to be set aside, he may be sent away with nothing.'
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 106-109 [51] - [59] , Gaudron and Gummow JJ examined circumstances in which constitutional writ relief for the writ of prohibition might be refused. They referred to the recognition that an element of the discretion attending the exercise of the jurisdiction conferred by s 75(v) of the Constitution with respect to prohibition, involved two separate questions. The first was whether the officers of the Commonwealth in question had acted in want of, or excess, of jurisdiction. His Honour's finding here shows that to be the case. The second question identified by Gaudron and Gummow JJ was whether prohibition should not issue having regard to the delay, waiver, acquiescence, or other conduct of the prosecutor in the course of the administrative proceeding or in other relevant circumstances (204 CLR at 106-107 [53]).
Case: F. Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295
Outcome: cited
Their Honours referred to the passage above from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and to an observation by Lord Denning MR, in F. Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320: 'He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he did not come with due diligence and ask for it to be set aside, he may be sent away with nothing.'