mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Clough and Rogers v Frog (1974) 48 ALJR 481
Outcome: cited
Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.
Case: Black and Decker Australasia Pty Limited v GMCA Pty Limited [2007] FCA 1623
Outcome: considered
It is also observed by Dawson, Gaudron and McHugh JJ in Queensland v JL Holdings at page 154 that: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation but it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. Those are observations reflect the views of an ultimate appellant court. Obviously enough, their application will differ in the context of particular cases and especially will differ in relation to an application of this nature, made in the course of a trial, in terms of whether prejudice will be occasioned to an opposing party. It must be said that in this court the reception of Queensland v JL Holdings has not been, with the very greatest of respect, an entirely subordinate one. In this regard and in the very particular context of the case before his Honour, in Black and Decker Australasia Pty Limited v GMCA Pty Limited [2007] FCA 1623 on 23 October 2007, Finkelstein J observed at para 3 that a state of affairs whereby case management directions were overlooked had as one of its chief causes what his Honour described as "the chilling effect" of the High Court's decision in Queensland v JL Holdings .
Case: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Outcome: applied
Before departing from questions of principle I should also make reference to another decision of the New South Wales Court of Appeal, Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 to which I was very helpfully referred by counsel. The leading judgment in the Court of Appeal in that case is that of Clarke J with whom Mahoney and Meagher JJ agreed. There are passages which appear at pages 475 and 476 which are pertinent to the discretion I have to exercise in this case. It suffices for present purposes if I note, by reference to what is an accurate summary of them in the head note, that a failure to lead evidence from a witness whom it is afterwards desired to call, even where such failure to due to a deliberate decision taken for tactical reasons, can not be a decisive ground for a court to refuse to exercise its discretion to grant an application by a party to re-open its case, albeit that is, an important factor. 28 Strictly speaking, the Respondent has not closed its case although, as I have mentioned, there were directions which required the identification of the Respondent's evidence in-chief by affidavit filed pre-trial, subject to a grant of leave. 29 In the context of this case, there is no doubt whatsoever that there is, to say the least, a degree of forensic embarrassment to Olivaylle in the application that is now made on behalf of Flottweg. It is quite apparent from the opening of the Applicant's case, as well as from passages in the cross examination of, especially, Dr Paterson, that aspects of the Applicant's case have been cast by reference to a predicated absence of Mr Lorenz from the witness box. "Predicated" in the sense that no affidavit from him was served by or on behalf of Flottweg until 2 April. Olivaylle also identifies and draws attention to the lateness of the application and the fact that Mr Lorenz's affidavit is not short, and it highlights and emphasises the prejudice I have mentioned. 30 Mr Lorenz's affidavit seems to me to have three broad subject areas: (i) his in-house involvement in the issuing of quotes and the conduct of correspondence related thereto with Dr Paterson, including conversations by telephone with Dr Paterson; (ii) a visit which he made to Australia in September 2004 to meet Dr Paterson and Messrs Nieuwkerk, de Moya and Carey to discuss the project; and then a further visit that he made to Australia in May of 2006 which involved his attendance on 1 and 2 May at the Olivaylle site of operation. The latter involved his observation of the line. In his affidavit at para 40, he purports to give an opinion in respect of the performance of that line. 31 On behalf of Flottweg, attention is directed to the court's overriding obligation to achieve justice between both parties. The point is also developed that some of the forensic advantage may depend on the interpretation of a particular email authored by Mr Lorenz on 28 January 2004 which is page 196 in the exhibits to the affidavit of Mr de Moya, (which became document 26 on the court file).
Case: Perrone; Re v Secretary, Department of Family and Community Services [2004] AATA 775
Outcome: referred to
The Tribunal found that the applicant suffered from a number of significant war-caused disabilities that included anxiety and a rare blood disorder that left him susceptible to infection. It found that he avoided public places and public transport and that he found that his anxiety, in particular, was helped by regular trips into the Australian outback, where he felt more relaxed and normal within himself. The Tribunal found that the applicant purchased the motor vehicle and the camper trailer for the specific purpose of having annual trips to the outback. The Tribunal found that the motor vehicle was not specifically designed for use by a disabled person. It was a standard motor vehicle and it had not been modified in any way that related to the applicant's particular disabilities. The Tribunal found that the camper trailer was a standard item owned by many members of the community and it was not specifically designed for use by a disabled person. It found that it was not modified in any way to accommodate the applicant's specific disabilities. The Tribunal referred to the only decision of which it was aware that might have been relevant to the issue before it ( Re Perrone v Secretary, Department of Family and Community Services [2004] AATA 775). 8 The Tribunal held that s 52(1)(k) and (l) of the VE Act refers to specific aids for the disabled and did not refer to standard items that have the additional feature that they give some comfort or relief to a disabled person. The Tribunal said that the submission advanced by the applicant, namely, that an asset not normally seen as being designed for a disabled person can be "reinterpreted" to be designed for a disabled person with a particular disability if that item has the effect of alleviating their disability, went well beyond a beneficial interpretation of the legislation. The Tribunal said that the relevant legislative provisions were straightforward and unambiguous. It said that the motor vehicle and camper trailer were not specifically designed or modified for a disabled person and that they were standard items owned by many members of the community. Both came within the definition of "assets", as contained in the VE Act , and had been properly brought to account as assets of the applicant and his wife. 9 The Tribunal affirmed the decisions under review.
Case: Nilant v RL &amp; KW Nominees Pty Ltd [2007] WASC 105
Outcome: referred to
In those circumstances, two issues arise on the present application. The first is whether it was open to Mr Pascoe to rely upon the provisions of s 1072C of the Act. I have been taken this afternoon to a number of authorities which deal with the effect of that section. The decision of Campbell J in the Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 seems to me plainly to support the applicability of s 1072C to authorise Mr Pascoe to pass the resolution. Other authorities to the same effect include the decision of Sackville J in Prentice v Cummins [2002] FCA 1165 at [7] ; the decision of Hasluck J in Nilant v RL &amp; KW Nominees Pty Ltd [2007] WASC 105 ; and the decision of Heerey J in Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 at [40] .
Case: Official Trustee in Bankruptcy v Buffier (2005) ACSR 839
Outcome: followed
In those circumstances, two issues arise on the present application. The first is whether it was open to Mr Pascoe to rely upon the provisions of s 1072C of the Act. I have been taken this afternoon to a number of authorities which deal with the effect of that section. The decision of Campbell J in the Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 seems to me plainly to support the applicability of s 1072C to authorise Mr Pascoe to pass the resolution. Other authorities to the same effect include the decision of Sackville J in Prentice v Cummins [2002] FCA 1165 at [7] ; the decision of Hasluck J in Nilant v RL &amp; KW Nominees Pty Ltd [2007] WASC 105 ; and the decision of Heerey J in Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 at [40] .
Case: Prentice v Cummins [2002] FCA 1165
Outcome: referred to
In those circumstances, two issues arise on the present application. The first is whether it was open to Mr Pascoe to rely upon the provisions of s 1072C of the Act. I have been taken this afternoon to a number of authorities which deal with the effect of that section. The decision of Campbell J in the Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 seems to me plainly to support the applicability of s 1072C to authorise Mr Pascoe to pass the resolution. Other authorities to the same effect include the decision of Sackville J in Prentice v Cummins [2002] FCA 1165 at [7] ; the decision of Hasluck J in Nilant v RL &amp; KW Nominees Pty Ltd [2007] WASC 105 ; and the decision of Heerey J in Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 at [40] .
Case: Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597
Outcome: referred to
In those circumstances, two issues arise on the present application. The first is whether it was open to Mr Pascoe to rely upon the provisions of s 1072C of the Act. I have been taken this afternoon to a number of authorities which deal with the effect of that section. The decision of Campbell J in the Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 seems to me plainly to support the applicability of s 1072C to authorise Mr Pascoe to pass the resolution. Other authorities to the same effect include the decision of Sackville J in Prentice v Cummins [2002] FCA 1165 at [7] ; the decision of Hasluck J in Nilant v RL &amp; KW Nominees Pty Ltd [2007] WASC 105 ; and the decision of Heerey J in Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 at [40] .
Case: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
Outcome: cited
Neither party referred to O 23 r 11 of the Rules for the purposes of this motion. Housewares submits that Bodum's rejection of the first offer of compromise ([12] above) is so unreasonable as to justify indemnity costs. Housewares asserted in correspondence that it would seek indemnity costs from the date of that offer in accordance with Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121. 32 Mere refusal of an offer or a Calderbank offer does not of itself warrant an order for indemnity costs; the offeror needs to show that the conduct of the offeree was unreasonable ( Alpine Hardwoods 190 ALR at [28], [35]; Black v Lipovac (1998) 217 ALR 386 at [217] to [218]). Bodum took the position that Housewares was not a "person aggrieved" in relation to the first and second designs and, for that reason, rejected the offer to release Housewares from any claim for design infringement in circumstances where Bodum would be liable to pay Housewares' costs. While Housewares was entitled to seek to establish that it was so aggrieved, the cross-claim would fail if Housewares had no standing to bring the action. It was not unreasonable for Bodum to argue that Housewares was not a "person aggrieved" in circumstances where no allegation of design infringement had been pleaded. Mere refusal by Bodum of the first offer of compromise does not justify indemnity costs.
Case: Assa Abloy Australia Pty Ltd v Australian Lock Company Pty Ltd [2005] FCAFC 246 ; (2005) 147 FCR 126
Outcome: applied
Bodum's submission that Housewares cannot be a "person aggrieved" is not accepted. Those words embrace ' any person having a real interest in having the entry expunged ' and include ' any person who would be or in respect of whom there is a reasonable possibility of his or her being "appreciably disadvantaged in a legal or practical sense" by the entry not being expunged ' ( Assa Abloy Australia Pty Ltd v Australian Lock Company Pty Ltd [2005] FCAFC 246 ; (2005) 147 FCR 126 at [19] ; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193). A ' close and direct connection in both a legal and practical sense between the existence and duration of the designs and potential damage to the appellant ' was sufficient in Assa Abloy , although Heerey and Allsop JJ thought it inappropriate in that case to express a view as to what the limits may be (at [24]).
Case: Black v Lipovac (1998) 217 ALR 386
Outcome: cited
Mere refusal of an offer or a Calderbank offer does not of itself warrant an order for indemnity costs; the offeror needs to show that the conduct of the offeree was unreasonable ( Alpine Hardwoods 190 ALR at [28], [35]; Black v Lipovac (1998) 217 ALR 386 at [217] to [218]). Bodum took the position that Housewares was not a "person aggrieved" in relation to the first and second designs and, for that reason, rejected the offer to release Housewares from any claim for design infringement in circumstances where Bodum would be liable to pay Housewares' costs. While Housewares was entitled to seek to establish that it was so aggrieved, the cross-claim would fail if Housewares had no standing to bring the action. It was not unreasonable for Bodum to argue that Housewares was not a "person aggrieved" in circumstances where no allegation of design infringement had been pleaded. Mere refusal by Bodum of the first offer of compromise does not justify indemnity costs.
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: cited
In my view, it was unreasonable for Bodum to issue the media release when the offer to surrender the designs and resolve the cross-claim had been made. The media release sent a mixed message to Housewares. It unreasonably provoked Housewares to protect its position and the position of the retailers of its products. Bodum should pay the costs incurred by Housewares in respect of its cross-claim for rectification of the Register of Designs between the issue of the media release on 10 October 2005 and the "clarification" by Bodum on 28 November 2005 on an indemnity basis ( Hamod v New South Wales (2002) 188 ALR 659 at [20]). 35 That leaves for consideration whether costs are payable on an indemnity basis after 28 November 2005. By then, Housewares was aware that there was no intention on the part of Bodum to allege design infringement. There was, however, still a dispute as to Housewares' entitlement to bring the cross-claim and costs. Bodum had offered surrender of the designs on the condition that the cross-claim for rectification be discontinued and each party pay its own costs; Housewares had offered to discontinue the cross-claim in return for the surrender of the designs on the condition that Bodum pay its costs. The cross-claim for rectification of the Register of Designs was capable of resolution subject to the dispute as to who should be liable for costs. 36 Neither party sought to bring that situation to finality. Neither party approached the Court to finalise the surrender of the designs or the cross-claim and resolve question of costs. Bodum did not approach Housewares or the Court with respect to orders for surrender of the designs. Housewares, knowing of the proposed surrender and the effect on its cross-claim for rectification, did not seek to finalise the matter with Bodum, nor approach the Court for orders as to its cross-claim. That was the time to finalise the status of the cross-claim for rectification and any costs associated with it. Instead, the matter did not progress until after Housewares served a notice to admit facts relevant to the cross-claim and the designs on 23 February 2006. It was entitled to do so because the cross-claim for rectification was still in issue; the designs had not been surrendered. Directions had been made requiring Housewares to prepare its evidence.
Case: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Outcome: cited
Bodum's submission that Housewares cannot be a "person aggrieved" is not accepted. Those words embrace ' any person having a real interest in having the entry expunged ' and include ' any person who would be or in respect of whom there is a reasonable possibility of his or her being "appreciably disadvantaged in a legal or practical sense" by the entry not being expunged ' ( Assa Abloy Australia Pty Ltd v Australian Lock Company Pty Ltd [2005] FCAFC 246 ; (2005) 147 FCR 126 at [19] ; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193). A ' close and direct connection in both a legal and practical sense between the existence and duration of the designs and potential damage to the appellant ' was sufficient in Assa Abloy , although Heerey and Allsop JJ thought it inappropriate in that case to express a view as to what the limits may be (at [24]). 39 On 24 February 2006, Bodum informed Housewares of its instructions to surrender the designs, with or without agreement from Housewares. That communication was an open letter in respect of each design. The letters stated '[i] f [Housewares] is not willing to consent to the offer to surrender [the designs] , we propose to file a motion seeking the Federal Court of Australia's consent to the surrender and propose to seek costs if your client unreasonably rejects this offer '. It was not unreasonable for Housewares to insist that Bodum pay its costs to date as a condition for its consent. It did so by letter dated 1 March 2006. It was, however, unreasonable for Housewares to continue to incur costs on the cross-claim after being put on notice in an open letter that Bodum had instructed its solicitors to surrender the designs. This is especially so after 1 March 2006, when Bodum ' formally put [Housewares] on notice that it need not take any further steps in these proceedings relating to the [designs]'. Bodum should not be liable to pay the costs incurred by Housewares after the letters dated 24 February 2006. 40 Bodum should pay Housewares' costs of its motion for the Court's consent to the surrender of the designs. Bodum should also pay Housewares' costs of the cross-claim for rectification of the Register of Designs incurred prior to the letters of 24 February 2006. Costs incurred by Housewares between 10 October 2005 and 28 November 2005 are payable on an indemnity basis. Costs are otherwise payable on a party and party basis. Each party is to bear its own costs in relation to the cross-claim for rectification after 24 February 2006. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 6 February 2007 Counsel for the Applicants: D K Catterns QC and S J Goddard Solicitor for the Applicants: Mallesons Stephen Jaques Counsel for the Respondent: W A Rothnie Solicitor for the Respondent: Arnold Bloch Leibler Date of Hearing: 2 May 2006 Date of Judgment: 6 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/44.html
Case: Comcare v Davies [2008] FCA 393
Outcome: cited
In this matter on 27 March 2008 reasons for decision were published allowing an appeal from the decision of the Administrative Appeals Tribunal given on 3 October 2007: Comcare v Davies [2008] FCA 393. 2 One of the orders then made was that the decision of the Tribunal was to be set aside. Liberty was reserved for the parties to apply within seven days should one or the other seek to have the orders varied. That liberty was not invoked but the orders as made on 27 March 2008 have not yet been entered. 3 Today, however, an oral application was made in accordance with O 35(7)(1) of the Federal Court Rules 1979 (Cth) to vary Order 3 as made on 27 March 2008. The application is supported by both parties.
Case: Applicant A v Minister for Immigration &amp; Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
Applicant A v Minister for Immigration &amp; Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 230-1, Brennan CJ said: If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty [ Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 265]. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way [ Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 at 413]. The Full Federal Court in McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ) summarised the principles applicable to the construction of DTAs in this way: Double tax treaties are bilateral treaties entered into between two states. As such they are to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 22 January 1974) (the Convention) and in particular Art 31 of the Convention. The application of the Convention has been discussed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and in Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 , the latter case being concerned with the interpretation of the double taxation agreement between Australia and Switzerland. The leading authority in this Court on interpretation of double taxation agreements is [ Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597]. It is unnecessary here, to set out again what is there said. The following principles can be said to be applicable: Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. International agreements should be interpreted "liberally". Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".