mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Home and Territories v Smith [1924] HCA 41 ; (1924) 35 CLR 120
Outcome: applied
even without an expression of legislative intention such as that found in s 12(2) of the Legislative Instruments Act , the newly inserted presumption would not be classified as a mere matter of practice and procedure such that the amending rule would not be construed so as to give the presumption retrospective effect: Minister for Home and Territories v Smith [1924] HCA 41 ; (1924) 35 CLR 120 at 127-129 per Isaacs ACJ and Starke J. I therefore approach the question as to whether to award indemnity costs without presuming that the rules confer upon Flottweg the advantage of an indication as to how, prima facie , a discretion ought to be exercised.
Case: NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77
Outcome: considered
respect of each of the offers upon which Flottweg relied, Olivaylle submitted that, even if it were a necessary conclusion flowing from my dismissal of the application that it was worse off than the position offered by those letters, there was no presumption flowing from this that costs taxed on an indemnity basis must be awarded. The importance afforded by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77 at 98, [88] to "sufficient particularity" in relation to an explanation for an offer and "inevitability of failure" was stressed. So, too, was stressed the need to remind myself that it was for Flottweg as offeror to show that the conduct of Olivaylle as offeree in rejecting any "Calderbank" offer was unreasonable, the application by Weinberg J in Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 at [35] of the Full Court's statement to this effect in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 at [217] [218] being cited in support.
Case: Notaras v Hugh [2003] NSWSC 919
Outcome: cited
not to be disclosed to Court (1) No statement of the fact that an offer has been made is to be contained in any pleading or affidavit. (2) If an offer has not been accepted, no communication with respect to the offer is to be made to the Court at the trial or hearing until after all questions of liability and the relief to be granted have been determined. (3) This rule does not apply where a notice of offer provides that the offer is not made without prejudice. Costs ... (5) If: (a) an offer is made by a respondent and not accepted by the applicant; and (b) the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer; then, unless the Court otherwise orders: (c) the applicant is entitled to an order that the respondent pay the applicant's costs in respect of the claim incurred up to 11 am on the day after the day when the offer was made, taxed on a party and party basis; and (d) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis. As can be seen, the Rules did not then expressly deal with a situation where a respondent had made an offer of compromise which was not accepted by an applicant and that applicant's claim was subsequently dismissed. An analogous lacuna in the then rules of the New South Wales Supreme Court moved a judge of that court to observe that the costs rule "discriminates irrationally against wholly successful defendants": Notaras v Hugh [2003] NSWSC 919 at [5] per Sperling J. Various judges made recommendations that rules of practice be amended to remove this discrimination: Dal Pont, supra, at [13.16], fn 79. Order 23 r 11 was amended so as to address this lacuna by Federal Court Amendment Rules 2008 (No 1) (SLI 159 of 2008) which inserted a new sub-rule, sub-rule 11(6) into O 23 r 11. That new sub-rule provides: (6) If: (a) an offer is made by a respondent and not accepted by the applicant; and (b) the respondent obtains an order or judgment on the claim to which the offer relates as favourable to the respondent, or more favourable to the respondent, than the terms of the offer; then, unless the Court otherwise orders: (c) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred up to 11 am on the day after the day the offer was made, taxed on a party and party basis; and (d) the respondent is entitled to an order that the applicant pay the respondent's costs in respect of the claim incurred after that time, taxed on an indemnity basis. The new sub-rule commenced on 2 August 2008.
Case: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) [2007] FCA 56
Outcome: followed
then docket judge had made directions on 27 July 2007 which required Olivaylle to file its material on or before 7 September 2007. Flottweg had made earlier that year one unsuccessful application for security for costs: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) [2007] FCA 56 (It was shortly to make another: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) (No 2) [2007] FCA 1892 , heard 14 September 2007). Olivaylle had the benefit of a costs order in its favour from the earlier application.
Case: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) (No 2) [2007] FCA 1892
Outcome: followed
then docket judge had made directions on 27 July 2007 which required Olivaylle to file its material on or before 7 September 2007. Flottweg had made earlier that year one unsuccessful application for security for costs: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) [2007] FCA 56 (It was shortly to make another: Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg GMBH &amp; Co KGAA (ABN 95 101 547 424) (No 2) [2007] FCA 1892 , heard 14 September 2007). Olivaylle had the benefit of a costs order in its favour from the earlier application.
Case: Olivaylle Pty Ltd v Flottweg GMBH &amp; Co KGAA (No 4) [2009] FCA 522
Outcome: followed
is a sequel to the judgment which I delivered on 20 May 2009 in respect of the substantive issues in the proceedings: Olivaylle Pty Ltd v Flottweg GMBH &amp; Co KGAA (No 4) [2009] FCA 522 (the main judgment). It should be read in conjunction with it. For reasons which I then published, I dismissed Olivaylle Pty Ltd's application (Olivaylle). I intimated then that I would hear the parties with respect to costs. There is no dispute between the parties that costs should follow the event. The question is whether, as Flottweg AG (formerly Flottweg GMBH &amp; Co KGAA) (Flottweg) sought following the dismissal, Olivaylle should be ordered to pay its taxed costs on an indemnity basis? If so, a related question is from which date payment of costs on that basis should be awarded? In essence, Flottweg's submission was that Olivaylle had unreasonably or imprudently rejected at least one, if not more, of a series of settlement offers which it had made, over a period between August 2006 and August 2007. In those circumstances, Flottweg submitted that costs should be awarded to it on an indemnity basis, either on and from the institution of proceedings or such later date as the Court might deem just. For its part, Olivaylle offered a critique of each of the offers to the end of submitting that there had been nothing unreasonable about their rejection such that the basis upon which costs should be taxed should be left as the usual party and party basis rather than being ordered on an indemnity basis.
Case: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No 2) [2008] FCA 1805
Outcome: considered
approached its application for costs on the basis that the presumption for which O 23 r 11(6) provides was not applicable to any of the offers which it had made, given that each was made and had lapsed prior to 2 August 2008. That approach is supported by authority: Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No 2) [2008] FCA 1805 at [20] per Kenny J, referring to s 59(4) of the Federal Court of Australia Act , and s 12(2)(b) of the Legislative Instruments Act 2003 (Cth) (Legislative Instruments Act ). Olivaylle's position was no different. In Australian and International Pilots Association v QANTAS Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at 396 Tracey J remarked: statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission (Vic) [1939] VLR 284 at 297-8; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415. Here, a contrary legislative intention is evident in relation to any operation O 23 r 11(6) might otherwise have with respect to past events. Like Kenny J in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No 2) [2008] FCA 1805 , I consider that such a conclusion is dictated by s 12(2)(b) of the Legislative Instruments Act . I also consider that s 12(2)(a) of the Legislative Instruments Act provides additional support for that view in that, prior to the making of the amendment to the rules, there existed a right to the exercise of a discretion with respect to the awarding of costs unfettered by any such prima facie presumption.
Case: Ruaro v Ferrari [2008] FCA 307
Outcome: cited
submissions did not gainsay the matters of principle for which the cases relied upon by Olivaylle stood, only the application of those principles in the circumstances of this particular case. In particular, Flottweg accepted that the mere fact that the result at trial left Olivaylle worse off than any pre-trial offer carried with it no presumptive entitlement to an award of indemnity costs. Rather, it was submitted that the question was whether the rejection of the offers (or at least one of them) was unreasonable or imprudent, the discussion and conclusions reached by Sackville J in Seven Network Ltd v News Ltd [2007] FCA 1489 ; (2007) 244 ALR 374 at [59] to [63] with respect to Black v Lipovac , supra and other authorities being adopted. Flottweg further submitted that, while it may not have been unreasonable or imprudent for Olivaylle to have instituted or, as the case may be, continued the litigation in the absence of one or more of the offers it made, at least one of those offers constituted a fair commercial compromise such that it was unreasonable or imprudent to institute or continue the litigation in the face of that offer. That sentiment, it was submitted, was evident in the approach taken by Emmett J in Ruaro v Ferrari [2008] FCA 307 at [17] .
Case: Grovenor v Permanent Trustee Company of NSW Ltd (1966) 40 ALJR 329
Outcome: referred to
In Grovenor v Permanent Trustee Company of NSW Limited (1966) 40 ALJR 329, also cited by McHugh J, the High Court stated (at 330) that "[t]he well-established rules as to the joinder of necessary parties ... ought always to be strictly observed". 69 By the amended originating process, Idameneo seeks, relevantly: &#8226; a declaration that Symbion Health is not bound by the TID in so far as it contains cll 13.8 and 13.9; and &#8226; an injunction restraining Symbion Health from paying, and the Directors from causing or procuring Symbion Health to pay, the break fee referred to in cll 13.8 and 13.9 of the TID. A declaration that Symbion Health is not bound by the provision for payment of the Symbion Health Break Fee and an injunction directed against payment of it directly affect Symbion Health's contractual obligations of Symbion Health to Healthscope and Healthscope's contractual rights against Symbion Health. 70 It is not practicable to formulate the relief sought in respect of the Symbion Health Break Fee so that it will affect only the rights and interests of the parties to the proceeding and not those of Healthscope. Idameneo necessarily seeks relief that will affect the rights and interests of Healthscope too.
Case: Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL [1968] HCA 37 ; (1968) 121 CLR 483
Outcome: cited
There is a well-known line of authority to the general effect that it is the province of directors, not the courts, to identify where the interests of a company lie, and that the courts do not exercise a supervisory function over the business judgments of directors: see, for example, Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL [1968] HCA 37 ; (1968) 121 CLR 483 at 493; Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 (PC) at 832. Unlike a company's power to issue shares with which the cases just cited were concerned, the power to agree to the inclusion of a break fee provision in a complex contract of the TID kind, being sui generis , is even less apt to being circumscribed by any more detailed rules than the general duty expressed in s 181(1).
Case: Howard Smith Ltd v Ampol Petroleum Ltd [1974] 1 NSWLR 68
Outcome: cited
There is a well-known line of authority to the general effect that it is the province of directors, not the courts, to identify where the interests of a company lie, and that the courts do not exercise a supervisory function over the business judgments of directors: see, for example, Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL [1968] HCA 37 ; (1968) 121 CLR 483 at 493; Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 (PC) at 832. Unlike a company's power to issue shares with which the cases just cited were concerned, the power to agree to the inclusion of a break fee provision in a complex contract of the TID kind, being sui generis , is even less apt to being circumscribed by any more detailed rules than the general duty expressed in s 181(1).
Case: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Outcome: followed
Symbion Health submits that Idameneo's failure to join Healthscope as a party is a fatal defect in the proceeding. Symbion Health cites News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 ( News v ARL ) at 524 525 and Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at [77] per McHugh J. Symbion Health submits that Healthscope's rights against Symbion will be directly affected if Idameneo obtains the relief it seeks, because Healthscope will lose the benefit of the Symbion Health Break Fee provision. Similarly, Healthscope's rights will, according to Symbion Health, also be directly affected by the relief relating to the proposed Capital Reduction, since the effect of the relief sought in that respect is that approval of the Capital Reduction by all ordinary shareholders of Symbion Health would be required, and Idameneo has made it clear that it will oppose the capital reduction. Thus, the Diagnostics Transaction will be doomed to fail.
Case: Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291
Outcome: referred to
Symbion Health submits that Idameneo's failure to join Healthscope as a party is a fatal defect in the proceeding. Symbion Health cites News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 ( News v ARL ) at 524 525 and Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at [77] per McHugh J. Symbion Health submits that Healthscope's rights against Symbion will be directly affected if Idameneo obtains the relief it seeks, because Healthscope will lose the benefit of the Symbion Health Break Fee provision. Similarly, Healthscope's rights will, according to Symbion Health, also be directly affected by the relief relating to the proposed Capital Reduction, since the effect of the relief sought in that respect is that approval of the Capital Reduction by all ordinary shareholders of Symbion Health would be required, and Idameneo has made it clear that it will oppose the capital reduction. Thus, the Diagnostics Transaction will be doomed to fail. 67 In Victoria v Sutton [1998] HCA 56 ; 195 CLR 291 McHugh J gave as a reason for setting aside orders of the Industrial Relations Court of Australia, a want of necessary parties. His Honour stated (at [77]), citing, inter alia , News v ARL 64 FCR 410: The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order.
Case: Rank Film Ltd v Video Information Centre [1982] AC 380
Outcome: cited
I note also that, as long ago as 1982, Lord Denning, Master of the Rolls, said in Rank Film Ltd v Video Information Centre [1982] AC 380 at 408 - 409: 'When a defendant is ordered to answer interrogatories or to disclose documents, the court will allow him the benefit of the privilege against self-incrimination when it is invoked for its legitimate purpose, that is, to save him from having his answer or documents used against him in a criminal court. But the court will not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrong-doing, so as to defeat the just claims of the plaintiff in a civil suit.'
Case: Australian Competition &amp; Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132
Outcome: cited
In Australian Competition &amp; Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132 , a Full Court of the Federal Court (Emmett, Hely and Jacobson JJ) referred to the general principles in respect of self-incrimination, at pars 12 14: '12 The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia [1983] HCA 10 ; (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. 13 The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: &#8226; is not confined to discovery and interrogatories; &#8226; is available at common law &#8226; is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)) The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty. 14 By requiring an individual respondent, prior to the closure of an applicant&#180;s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty: Reid v Howard (at 6).'
Case: HMP Industries Pty Ltd v Graham, unreported New South Wales Supreme Court 17 July 1996
Outcome: cited
Young J in HMP Industries Pty Ltd v Graham , an unreported judgment of 17 July 1996 in the NSW Supreme Court, expressed the view that: ' Section 128 seems to envisage the situation where a person is in the position of objecting to giving particular evidence. The section also is set in the background of a witness giving evidence with the Court having certain discretions as to whether in all the circumstances it should require the witness to answer a possibly incriminating question. This scenario suggests that it is applicable only where the witness is in Court.' 37 Notwithstanding his Honour's view, it seems to me that the section does not prescribe any particular mode of giving of evidence. It is, in my view, capable of applying to affidavit evidence. 38 However there is a requirement of s 128(5)(b) that: 'The evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country.' 39 Given the factual circumstances of this case, and in particular the applicant being incorporated in St Vincent and the Grenadines, there is a real question whether there has been shown to the court the exclusion of the criterion in s 128(5)(b). 40 More importantly, I am not satisfied that the interests of justice presently require the second respondent to give this evidence, which is in the nature really of a compulsory discovery, particularly where that information might be able to be obtained by third party discovery. 41 The present application seeking to invoke s 128(5) is not directed to seeing that the asset preservation order is efficacious. It really is seeking substantive disclosure in the principal proceedings. I can understand the concern of the applicant to find out where the money went, but in my opinion, the procedure under s 128(5) has not been shown to be the appropriate way to obtain the information.
Case: Apthorpe v Repatriation Commission (1987) 13 ALD 656
Outcome: cited
noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.
Case: Commonwealth v Evans [2004] FCA 654 , 81 ALD 402
Outcome: cited
if that difficulty be left to one side, the problem confronting the Appellants is only compounded by the fact that (as framed) the first two purported Grounds of Appeal do not comply with Order 52 r 13(2)(b) of the Federal Court Rules , namely the requirement to state " briefly, but specifically, the grounds relied upon in support of the appeal ". A statement that a Tribunal has " declined to exercise its jurisdiction " or has committed " jurisdictional error " does not satisfy that requirement. In attempting to provide a " useful practical guide ", it has been said that a " notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions " will " almost certainly " fail to comply with the requirements of Order 52 r 13(2)(b): Commonwealth v Evans [2004] FCA 654 at [35] , [2004] FCA 654 ; 81 ALD 402 at 411 per Branson J.