mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Outcome: cited
The principles which apply to an application such as the present were usefully stated by Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478: "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel." 30 Although it is open to a court in the exercise of its discretion to give a party leave, after final addresses have been delivered and the court has reserved its judgment on the matter, to re-open its case and call further evidence if the interests of justice so require: Urban Transport Authority of NSW v Nweiser (supra) at 478, the courts have developed the rule in Browne v Dunn to resolve the issue which has now arisen in the present proceeding. That rule can be applied to the circumstances which have arisen without the need to resort to the step of allowing the defendants to re-open their case after judgment has been reserved.
Case: Goldsmith v Landilonidis [2002] HCA 31 ; (2002) 190 ALR 370
Outcome: cited
Put shortly, the evidence the defendants now seek to lead is evidence to respond to a Browne v Dunn issue but the evidence, other than as to credit issues, does not bear upon any directly material or relevant fact in the proceeding as the defence of mistake has been abandoned. It is evidence in respect of collateral facts: cf Goldsmith v Landilonidis [2002] HCA 31 ; (2002) 190 ALR 370 at 372.
Case: Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: cited
The defendants' application requires the Court to exercise a discretion to grant the defendants leave to re-open their case after final submissions have been concluded and the Court has reserved its decision. That jurisdiction is well recognised and has been exercised on a number of occasions, not only where a party has closed its case and the trial is continuing but also where all parties have closed their case, final submissions have been made and concluded and the Court has reserved its decision: Murray v Figge (1974) 4 ALR 612; Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266-267. 20 In McCarthy v McIntyre [2000] FCA 1250 , the Full Court of the Federal Court said at par [30]: "Where an application is made to reopen on the basis that new or additional evidence is available, it would be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. Even if that hurdle is passed, different considerations will apply depending upon whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered. In the former situation, the primary consideration should be that of embarrassment or prejudice to the other side. However, in the latter situation, the appeal rules relating to fresh evidence provide a useful guide as to the manner in which the discretion to reopen should be exercised Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266-7."
Case: Australian Trade Commission v Disktravel [2000] FCA 62
Outcome: cited
While New South Wales Dairy Corporation (1989) 14 IPR 75 is helpful I do not think it is on all fours with the case before me. It is true that the applicant in these proceedings has obtained an injunction, however looking more closely at the application it is clear that the applicant did not achieve all that it sought in its application or indeed the injunction it sought. This is not a case where, to paraphrase the language of the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 at [4] , the applicant succeeded completely in terms of the final orders it secured. I am not persuaded on the basis of New South Wales Dairy Corporation (1989) 14 IPR 75 that this is not a case where some apportionment of costs may be warranted.
Case: Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 2) [2008] FCA 1761
Outcome: related
On 25 November 2008 I gave judgment in the primary proceedings in this matter ( Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1) [2008] FCA 1760) and also in relation to a notice of motion filed 16 May 2008 ( Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 2) [2008] FCA 1761). In summary, I found that the conduct of the first and second respondents had infringed the applicant's registered trade mark, but that the effect of compliance with an oral undertaking given by the first respondent during the hearing of the primary proceedings was that the infringement of the applicant's registered trade mark by the respondents ceased. Notwithstanding that undertaking however, I allowed the application in part because I considered that the applicant was entitled to an injunction based upon the oral undertaking. Upon giving judgment I directed the parties to make submissions as to the terms of the injunction in light of the reasons given in my judgment. I also directed that the parties make submissions as to costs. 10 The applicant submitted that, as the notice of motion was dismissed ( Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 2) [2008] FCA 1761) , there was no reason why the normal rule should not apply, and that costs should follow the event. The respondents made no submissions specifically referable to this notice of motion.
Case: Dodds Family Investment Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Outcome: cited
As the Full Court observed in Dodds Family Investment Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272: Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation. 26 In summary, this case represents a mixed outcome in which the applicant has been, to a degree, successful. That the applicant was obliged to institute legal proceedings to obtain an injunction and its success in obtaining a limited injunction are significant factors in relation to the exercise of the Court's discretion under s 43(2) Federal Court of Australia Act . No separate evidence was lead in respect of the TPA and passing off claims and there was extensive commonality of issues raised in relation to the successful trade mark infringement claims and the applicant's unsuccessful claims. In relation to the undertaking, it was offered two days into the trial after several months of directions and an unsuccessful mediation, and was loosely worded with no reference to costs. I do not think this is a case where the applicant should be liable for any of the respondents' costs. However detailed submissions were made in respect of the failed TPA and passing off claims as well as the failed claims for pecuniary and ancillary relief. Further, a small amount of time was taken up at the trial in relation to the failed claims, and more time in relation to the relief in respect of which the applicant was unsuccessful and which was clearly an important aspect of the applicant's case. On balance I consider the applicant is entitled to its costs, subject to a discount to reflect the only limited success of the applicant in relation to both its claims and relief. In the circumstances of this case I consider justice will be done as between the parties if I order the respondents to pay 80% of the applicant's costs of the proceedings. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 December 2008 Counsel for the Applicant: Mr A Franklin SC Solicitor for the Applicant: Bennett &amp; Philp Counsel for the Respondents: Mr A Crowe SC Solicitor for the Respondents: Holding Redlich Date of Hearing: 3 December 2008 Date of Judgment: 10 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1869.html
Case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495
Outcome: cited
Consideration of an award of costs in relation to the primary proceedings in this case is inevitably more complex than in respect of the notice of motion because the applicant in the primary proceedings was only partially successful in relation to the claims the applicant was able to substantiate and the relief it sought. The Courts have observed on numerous occasions that where a litigant has succeeded only upon a portion of the claim the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed, and indeed a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party's costs: Hely J in Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, cf Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. However it is equally clear that the Court should not resort too readily to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: Dr Martens Australia v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] , Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154.
Case: Dr Martens Australia v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
Consideration of an award of costs in relation to the primary proceedings in this case is inevitably more complex than in respect of the notice of motion because the applicant in the primary proceedings was only partially successful in relation to the claims the applicant was able to substantiate and the relief it sought. The Courts have observed on numerous occasions that where a litigant has succeeded only upon a portion of the claim the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed, and indeed a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party's costs: Hely J in Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, cf Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. However it is equally clear that the Court should not resort too readily to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: Dr Martens Australia v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] , Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154.
Case: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32
Outcome: cited
The Court has an unconfined discretion within s 43(2) Federal Court of Australia Act 1976 (Cth) to award costs and there is no automatic rule that costs always follow the event ( Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32 at 39-40, Probiotec Ltd v The University of Melbourne (2008) FCAFC 5 at [46] ). In this case however, in the interests of fairness, and in the absence of misconduct of any kind by the applicant, I consider that costs should follow the event (cf comments by McHugh J in Oshlack v Richmond River Council [1998] HCA 11 ; [1998] 193 CLR 72 at [67] - [70] ). The appropriate order is that the respondents pay the applicant's costs in relation to the notice of motion filed 16 May 2008.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: cited
Consideration of an award of costs in relation to the primary proceedings in this case is inevitably more complex than in respect of the notice of motion because the applicant in the primary proceedings was only partially successful in relation to the claims the applicant was able to substantiate and the relief it sought. The Courts have observed on numerous occasions that where a litigant has succeeded only upon a portion of the claim the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed, and indeed a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party's costs: Hely J in Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, cf Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. However it is equally clear that the Court should not resort too readily to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: Dr Martens Australia v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] , Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; [1998] 193 CLR 72
Outcome: cited
The Court has an unconfined discretion within s 43(2) Federal Court of Australia Act 1976 (Cth) to award costs and there is no automatic rule that costs always follow the event ( Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32 at 39-40, Probiotec Ltd v The University of Melbourne (2008) FCAFC 5 at [46] ). In this case however, in the interests of fairness, and in the absence of misconduct of any kind by the applicant, I consider that costs should follow the event (cf comments by McHugh J in Oshlack v Richmond River Council [1998] HCA 11 ; [1998] 193 CLR 72 at [67] - [70] ). The appropriate order is that the respondents pay the applicant's costs in relation to the notice of motion filed 16 May 2008.
Case: Probiotec Ltd v The University of Melbourne (2008) FCAFC 5
Outcome: cited
The Court has an unconfined discretion within s 43(2) Federal Court of Australia Act 1976 (Cth) to award costs and there is no automatic rule that costs always follow the event ( Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 241 ALR 32 at 39-40, Probiotec Ltd v The University of Melbourne (2008) FCAFC 5 at [46] ). In this case however, in the interests of fairness, and in the absence of misconduct of any kind by the applicant, I consider that costs should follow the event (cf comments by McHugh J in Oshlack v Richmond River Council [1998] HCA 11 ; [1998] 193 CLR 72 at [67] - [70] ). The appropriate order is that the respondents pay the applicant's costs in relation to the notice of motion filed 16 May 2008.
Case: Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129
Outcome: cited
Consideration of an award of costs in relation to the primary proceedings in this case is inevitably more complex than in respect of the notice of motion because the applicant in the primary proceedings was only partially successful in relation to the claims the applicant was able to substantiate and the relief it sought. The Courts have observed on numerous occasions that where a litigant has succeeded only upon a portion of the claim the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed, and indeed a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party's costs: Hely J in Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, cf Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. However it is equally clear that the Court should not resort too readily to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: Dr Martens Australia v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] , Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at 497, Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] 1 VR 129 at 152-154.
Case: Chen Shi Hai v Minister for Immigration [2000] HCA 19 ; (2000) 201 CLR 293
Outcome: cited
Federal Magistrate found the fifth complaint made out. The Tribunal was wrong to proceed on the basis that for discrimination to be considered persecution, it must be motivated by an intent to harm. The Federal Magistrate said that in that regard the Tribunal had proceeded upon an incorrect basis: Chen Shi Hai v Minister for Immigration [2000] HCA 19 ; (2000) 201 CLR 293 at [33] to [35]. He said the Tribunal should have asked itself whether or not the activity complained of was discriminatory and whether it was Convention based. He found that by introducing the concept of 'benevolence' the Tribunal had committed jurisdictional error in determining that the conduct complained of did not amount to discrimination and thereby persecution.
Case: VBAP of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: cited
my opinion, that submission must be accepted. There might be some cases where a tribunal of this kind considering questions of this kind could fall into jurisdictional error in respect of an aspect of its deliberations which would not affect the ultimate conclusion. VBAP of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 was one of these. However, this matter is different. There were a number of issues before the Tribunal which needed to be resolved. First, whether the appellants were subject to persecution; secondly, whether they had a fear of persecution; thirdly, whether the fear of persecution was well founded; fourthly, whether there was adequate state protection available to the appellants; and fifthly, whether the appellants could be relocated so as to avoid any form of persecution. The question of relocation cannot be considered in a vacuum if, in fact, there is no adequate state protection available to the appellants. The question of relocation must always depend upon there being available adequate state protection. Because the Federal Magistrate found the Tribunal had fallen into error in relation to the question of state protection, it seems to me the Tribunal's decision cannot stand. The first respondent has not challenged the Federal Magistrate's reasons in relation to the Tribunal's error in relation to state protection.
Case: Lovett (on behalf of the Gunditjmara People) v Victoria [2007] FCA 474
Outcome: cited
The exercise of power by the Court is also subject to the Court being satisfied that it is appropriate for the Court to make the orders sought (see Lovett (on behalf of the Gunditjmara People) v Victoria [2007] FCA 474 , at [5]), and, as with any order of the Court, being satisfied that the proposed orders are unambiguous and certain as to the rights declared (see Munn (on behalf of the Gungarri People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 , at [32]).
Case: Munn (on behalf of the Gungarri People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109
Outcome: cited
The exercise of power by the Court is also subject to the Court being satisfied that it is appropriate for the Court to make the orders sought (see Lovett (on behalf of the Gunditjmara People) v Victoria [2007] FCA 474 , at [5]), and, as with any order of the Court, being satisfied that the proposed orders are unambiguous and certain as to the rights declared (see Munn (on behalf of the Gungarri People) v Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 , at [32]).
Case: Ashmore v British Coal Corporation [1990] 2 QB 338
Outcome: cited
As was observed in Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523 ; (1991) 32 FCR 275 at 279, there is an infinite variety of circumstances which may give rise to an abuse of process (see also Ashmore v British Coal Corporation [1990] 2 QB 338 at 348). However, the Court is mindful that the power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse: see Sea Culture at 279.
Case: Croker v Commonwealth of Australia [2007] FCA 831
Outcome: cited
On 24 May 2007 Edmonds J, having observed that the applicant had not put before his Honour any material upon which 'I might conclude that the orders made below are attended with sufficient doubt to warrant them being reconsidered by this Court' refused the application for leave with costs: see Croker v Commonwealth of Australia [2007] FCA 831. 26 On 5 April 2007 the Commonwealth applied for security for costs in the Federal Magistrates Court. 27 On 29 May 2007 Mr Croker filed an application for a stay in the Federal Magistrates Court 'until the outcome of an application to the High Court of Australia' . No such application existed.
Case: Croker v Commonwealth of Australia [2007] FCA 1593
Outcome: cited
On 17 October 2007 the application for leave to appeal against such orders was dismissed by Buchanan J. His Honour also ordered Mr Croker to pay the costs of the application for leave: see Croker v Commonwealth of Australia [2007] FCA 1593. 32 On 31 October 2007 Federal Magistrate Lloyd-Jones stayed the Federal Magistrates Court proceedings SYG 548 of 2007 pending payment for security for costs and ordered that proceedings be dismissed if security was not paid by 5.00 pm on 16 November 2007. 33 Mr Croker did not pay the amount so ordered. On 22 November 2007 the Commonwealth wrote to Mr Croker advising that, in the absence of payment of security as ordered, the proceedings were dismissed. On 6 March 2008 an order was made by Lloyd-Jones FM dismissing the proceedings. An order was also made for payment by Mr Croker of the costs of the Commonwealth.