mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121
Outcome: cited
Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).
Case: Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386
Outcome: cited
The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.
Case: Colgate Palmolive Co v Cussons Pty Ltd (1993) 47 FCR 225
Outcome: cited
Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).
Case: Dais Studio Pty Ltd v Bullett Creative Pty Ltd [2008] FCA 42
Outcome: cited
The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle. 2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.
Case: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: cited
The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ... See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15] .
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55
Outcome: cited
I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [34] . His Honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a Calderbank letter. His Honour was invited to depart from that line of first instance authority. However he was not prepared to say it was clearly wrong. Notwithstanding that, in the circumstances of the case he had to decide, his Honour found that: The fact that the offer gave no indication at all of the breakdown ... between the claim, interest and costs blunts significantly the weight to be given the offer. 35 While respecting the general approach to rolled up offers reflected in the cases to which Finn J referred, such approaches cannot be calcified into rules of law which fetter a general discretion. They simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. There may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs.
Case: John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201
Outcome: cited
The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ... See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15] .
Case: Seven Network Limited v News Limited (2007) 244 ALR 374
Outcome: cited
On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement that it be "unreasonable". Given the evaluative character of the judgment involved the addition of the word "plainly" which is itself evaluative, has no useful function. 37 At the time that Sirtex made its offer to UWA the prospect of UWA succeeding against Sirtex depended critically upon: 1. UWA establishing its case against Dr Gray and, in particular, that he had breached his fiduciary duty. 2. UWA establishing that Sirtex was accessorially liable in relation to that breach, a position that depended upon establishing that Sirtex was aware of facts constituting (and which would have indicated to a reasonable person) the breach of fiduciary duties owed by Dr Gray to UWA. 38 It cannot be said that UWA acted unreasonably in proceeding on the basis that it had a reasonable cause of action against Dr Gray. True it is that the case as framed and presented depended upon an important proposition of law as to the existence of an implied term in the contract of Dr Gray's employment with UWA. But the correctness of that proposition had not previously been tested in Australia in circumstances of the kind which arose in this case. This is not a case, in my opinion, in which it is appropriate to take a hindsight test to the facts known to UWA at the time of Sirtex's offer and conclude that it ought to have known that the law was against it. 39 There were of course other hazards in the way of UWA's path to success against Dr Gray and therefore against Sirtex. The question whether the relevant inventions were made while Dr Gray was an employee of UWA was one issue upon which findings adverse to UWA were made on all but the DOX-Spheres technology. There was also a finding adverse to UWA that none of the Sirtex directors, apart from Dr Gray, were on notice of a potential claim. To establish any cause of action against Sirtex based on knowing involvement in his alleged breaches of fiduciary duty would have depended entirely upon his role as a director of Sirtex and whether his knowledge could be attributed to that company. In addition, UWA faced substantial defences by Sirtex based on UWA's delay in commencing proceedings after it first became aware of the facts relevant to its claimed causes of action. 40 The preceding factors may be seen as weighing to some degree in favour of the Sirtex motion. On the other hand the offer came as the trial commenced. That is a factor, given the focus on the trial process which would then have existed, that militates against a finding of unreasonableness on the part of UWA in refusing the offer. That conclusion is not affected by the fact that Sirtex was making a counter-offer. The counter-offer was not a variation on a theme opened by UWA's offers. It was quite different and could have been proposed earlier.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Outcome: applied
recent decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 clarifies this issue. Gleeson CJ and Crennan J (at [19]), after referring to various cases dealing with the grant of interlocutory injunctions in cases of defamation, formulated the general principles governing the grant of such relief in the following terms: "in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction."
Case: Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325
Outcome: followed
Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition. Had it not been for the fact that there will be a speedy trial of this matter, which Stone J regarded as a relevant consideration in Hexal v Roche (at [78]), I might have been inclined to grant some, at least, of the orders sought by CSL. I will give the parties an opportunity to be heard in relation to the matter of costs. I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 3 October 2006 Counsel for the Applicant: Mr B.N. Caine SC and Dr W.A. Rothnie Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: Mr P.W. Collinson SC and Ms H.M.J. Rofe Solicitor for the Respondent: Deacons Date of Hearing: 22 September 2006 Date of Judgment: 3 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1301.html
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: cited
Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 (at 153) as support for that proposition.
Case: R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518
Outcome: cited
quia timet proceedings, the court will have regard to the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518 Isaacs J observed (at 539): "The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a clear case of illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for." Dr I C F Spry, in Equitable Remedies (2001, 6 th ed), comments (at 378) that quia timet injunctions are not granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court's intervention. The fact that there is no breach presently occurring may make it more difficult, as a matter of evidence, to establish that there is a sufficient risk of a future injury to justify the immediate grant of an injunction. If, in all the circumstances, the likelihood that an injury will take place is not sufficiently high, quia timet relief will be refused. The applicant will be left either to avail him or herself of such other remedies as may be open, or else to renew his or her application should the likelihood of an injury subsequently increase sufficiently to render equitable intervention appropriate. There is some debate as to whether a greater degree of proof is required in a case involving interlocutory quia timet relief than in a case involving a different kind of injunction. The issue is discussed in Meagher, Gummow &amp; Lehane (at [21-395]), and need not be further canvassed here. It is sufficient to note that, in many cases, it may be more difficult to prove that an apprehended injury will occur than it is to prove that an existing injury will continue.
Case: National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668
Outcome: followed
It was not suggested in this proceeding that, so far as a Commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. That usual position was expressed by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668 , at 676 to be as follows: Generally speaking, when a cheque is given in payment of a debt, it operates as a conditional payment. The payment is subject to a condition that the cheque be paid on presentation. If it is dishonoured the debt revives. Although it is sometimes said that the remedy for the primary debt is suspended, the suspension is no more than a consequence of the conditional nature of the payment: Tilley v Official Receiver in Bankruptcy [1960] HCA 86 ; (1960) 103 CLR 529 , at pp 532-533, 535-536, 537. The condition is a condition subsequent so that, if the cheque is met, it ranks as an actual payment from the time it was given. Subject to non-fulfilment of the condition subsequent, the payment is complete at the time when the cheque is accepted by the creditor: Thomson v Moyse (1961) AC 967 , at p 1004. 14 It was submitted for the Deputy Commissioner that, in the events which had transpired in this case, that usual position had been altered by the signification by the Deputy Commissioner that he would agree to the dismissal of the winding up application once the proceeds of the cheque had been cleared. It seems to me though that the evidence is more consistent with the Deputy Commissioner's adopting a position which was in accordance with the general position when a cheque is given in payment of a debt. It has been accepted subject to a condition that the cheque would be paid on presentation. Subject to the fulfilment of that condition, payment of the then outstanding amount of the debt due to the Commonwealth and payable to the Commissioner was complete upon the acceptance by the Deputy Commissioner on 10 November 2008 of the cheque then proffered on behalf of Ganter. In this regard, the fact that the proffered cheque was a bank cheque may well have provided a degree of comfort to the Deputy Commissioner in deciding to accept it, but the position would have been the same in law so far as the relationship of debtor and creditor was concerned had the cheque concerned been one where the drawer was other than a bank.
Case: George v Cluning (1979) 53 ALJR 767 (note)
Outcome: followed
Strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. Subject to some particular contractual or statutory provision, the only forms of legal tender remain Australian notes or, subject to the limits specified, Australian coins see s 36 of the Reserve Bank Act 1959 and s 16 of the Currency Act 1965 respectively. However, in general trade and commerce, as Mason J observed in George v Cluning (1979) 53 ALJR 767 (note) by reference to Canadian authority, a payment by cheque can amount to sufficient payment if not objected to on that account. In this case there was no objection made by the Deputy Commissioner on account of Ganter's endeavouring to settle its indebtedness by the tendering of a cheque only, as I have noted a signification that it was accepted subject to a condition that the cheque would be paid on presentation
Case: Australian Mid-Eastern Club Limited v Yassim (1989) 1 ACSR 399
Outcome: followed
None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to be insolvent the Deputy Commissioner would have been entitled not to accept the cheque. A refusal to accept the cheque would not have eliminated the debt in question: Australian Mid-Eastern Club Ltd v Yassim (1989) 1 ACSR 399 , at 403 (NSWCA); Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 at [3] per Gyles J.
Case: Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126 ; (1994) 116 FLR 314; (1994) 14 ACSR 580
Outcome: followed
The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion reached by Zeeman J in Deputy Commissioner of Taxation v Guy Holdings Pty Ltd (1994) 116 FLR 314 at 318. As did Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [6]), I agree with that conclusion. As Zeeman J observed in the Guy Holdings Case (at 320), "in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". His Honour is there referring to the way in which, in those circumstances, the discretion vested in the Court on the hearing of a winding up application by s 467 of the Corporations Act would ordinarily be exercised.
Case: Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177
Outcome: cited
Assuming that the Deputy Commissioner ought presently to be regarded as an applicant whose debt has been paid, it does not, with respect, seem to me to follow that the application must therefore necessarily be dismissed. In his judgment in Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177 , at 194-195, Menzies J, in what is strictly an obiter dictum , opined: In the course of argument upon this appeal, reference was made to the consequence of a petitioning creditor being paid off between the presentation of the petition and the making of an order. That circumstance would not, in my opinion, put an end to the petition nor would it affect the jurisdiction of the court to hear and determine the petition although, of course, in such circumstances proceedings might not be continued and, if they were, the court could, in the exercise of its discretion, refuse to make a winding up order upon the petition of a person not then a creditor. In that same case, Barwick CJ (at 179) also seems to have been of the view that, under the then statutory regime for the winding up of a company, the date for the determination of whether a petitioner was a creditor was the date of presentation of the winding up petition. 21 In my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. As it was when Motor Terms v Liberty Insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. By s 459A(1)(b) of the Corporations Act a creditor is one of the persons who may apply for the winding up of a company. The application for the winding up of Ganter was made by the Deputy Commissioner upon the filing of the application in this Court on 20 August 2008. At that time, the Deputy Commissioner was, on any view, a creditor. Like Gyles J in Deputy Commissioner of Taxation v Visidet Pty Ltd (at [5]), I am not persuaded that there is any requirement flowing from the Corporations Act that the applicant must continue to be a creditor at the time when the winding up application is heard. As his Honour there states (ibid), and though it is cited in a number of cases which he notes, the passage from the judgement of Menzies J in Motor Terms v Liberty Insurance (supra) does not support the existence of any such requirement.
Case: Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Outcome: cited
is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel.
Case: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374
Outcome: cited
is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel.