mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101
Outcome: cited
the reasons in Tran No. 1 at [50]-[54] the Court reiterates that no compensation is payable since s 51(xxxi) of the Constitution does not operate in respect of the forfeiture. The ship was validly forfeited. No question of payment of compensation arises where the forfeiture results from the incidental exercise of power under the Migration Act since s 51(xxxi) ' applies only to acquisitions of a kind that permit of just terms ': see Newcrest Mining (WA) Limited and Another v The Commonwealth of Australia and Another [1997] HCA 38 ; (1997) 190 CLR 513 per Gummow J at 595; see authorities referred to in Tran No. 1 at [51]-[53]; see also Mutual Pools &amp; Staff Pty. Limited v The Commonwealth of Australia [1994] HCA 9 ; (1994) 179 CLR 155 per Brennan J at 177; The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 per Brennan CJ at [10]-[13]; Gaudron J at [75]-[79]. The concept that compensation might be payable in circumstances where forfeiture has resulted from a contravention of a Commonwealth statute is incongruous: see Theophanous v The Commonwealth [2006] HCA 18 ; (2006) 225 CLR 101 at [55] - [61] ; Re Director of Public Prosecutions; Ex parte Lawler and Another [1994] HCA 10 ; (1994) 179 CLR 270 at 289.
Case: Wentworth v Woollahra Municipal Council and Others [1982] HCA 41 ; (1982) 149 CLR 672
Outcome: referred to
considering the substance of the applicant's claims, it is to be observed that ordinarily the Court cannot revisit its findings. In Wentworth v Woollahra Municipal Council and Others [1982] HCA 41 ; (1982) 149 CLR 672 at 684 Mason ACJ, Wilson and Brennan JJ said:- ...the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard. Similarly, Mason CJ in Autodesk Inc. and Another v Dyason and Others (No. 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 303 said that the power of the Court to reconsider judgments would not be exercised for the purpose of ' re-agitating arguments already considered by the Court ', nor ' because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put '.
Case: Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 31 FCR 469
Outcome: cited
appeal (see Olbers Co Ltd v Commonwealth and Another [2004] FCAFC 262 ; (2004) 143 FCR 449) the Full Court explicitly adopted the findings of French J that forfeiture under s 106A of the FMA took place without conviction for any offence. As to the condemnation procedure provided by s 106B to s 106G of the FMA, the Full Court in Olbers [2004] FCAFC 262 ; 143 FCR 449 , adopting the reasoning in Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 31 FCR 469 at 477-478, determined that such provision enabled the recording of the forfeiture having already occured: see Olbers [2004] FCAFC 262 ; 143 FCR 449 at [16] - [17] ; Tran No. 1 at [43].
Case: Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292
Outcome: cited
delivering judgment in the principal proceeding in which I dismissed Mr Duncan's application: see Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292 ; I ventured to suggest that this may be an appropriate matter in which to make no order as to costs. Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-of-pocket expenses: see Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 ; and see generally Dal Pont, Law of Costs (2003) [7.24] ff. Centrelink's claimed entitlement to a costs award was founded upon the principle that, ordinarily, costs follow the event. It contends that it did not unreasonably provoke the litigation: cf Cummings v Lewis (unreported, Wilcox J, 29 May 1992); the defensive postures it took, though unsuccessful in some degree, were not unreasonable: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169; and the applicant was wholly unsuccessful.
Case: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403
Outcome: cited
delivering judgment in the principal proceeding in which I dismissed Mr Duncan's application: see Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292 ; I ventured to suggest that this may be an appropriate matter in which to make no order as to costs. Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-of-pocket expenses: see Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 ; and see generally Dal Pont, Law of Costs (2003) [7.24] ff. Centrelink's claimed entitlement to a costs award was founded upon the principle that, ordinarily, costs follow the event. It contends that it did not unreasonably provoke the litigation: cf Cummings v Lewis (unreported, Wilcox J, 29 May 1992); the defensive postures it took, though unsuccessful in some degree, were not unreasonable: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169; and the applicant was wholly unsuccessful.
Case: Cummings v Lewis (unreported, Wilcox J, 29 May 1992)
Outcome: cited
delivering judgment in the principal proceeding in which I dismissed Mr Duncan's application: see Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292 ; I ventured to suggest that this may be an appropriate matter in which to make no order as to costs. Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-of-pocket expenses: see Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 ; and see generally Dal Pont, Law of Costs (2003) [7.24] ff. Centrelink's claimed entitlement to a costs award was founded upon the principle that, ordinarily, costs follow the event. It contends that it did not unreasonably provoke the litigation: cf Cummings v Lewis (unreported, Wilcox J, 29 May 1992); the defensive postures it took, though unsuccessful in some degree, were not unreasonable: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169; and the applicant was wholly unsuccessful.
Case: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166
Outcome: cited
delivering judgment in the principal proceeding in which I dismissed Mr Duncan's application: see Duncan v Chief Executive Officer, Centrelink [2008] FCA 56 ; (2008) 100 ALD 292 ; I ventured to suggest that this may be an appropriate matter in which to make no order as to costs. Nonetheless I invited submissions on costs. Needless to say each party sought a costs order. Mr Duncan relies upon what he contends was Centrelink's demonstrated "disdain for the law" although, as the costs of his pro bono counsel are not being sought, any costs order in his favour would in any event be limited to out-of-pocket expenses: see Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 ; and see generally Dal Pont, Law of Costs (2003) [7.24] ff. Centrelink's claimed entitlement to a costs award was founded upon the principle that, ordinarily, costs follow the event. It contends that it did not unreasonably provoke the litigation: cf Cummings v Lewis (unreported, Wilcox J, 29 May 1992); the defensive postures it took, though unsuccessful in some degree, were not unreasonable: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169; and the applicant was wholly unsuccessful.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
principles that inform the exercise of the Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well accepted. That discretion is absolute and unfettered but must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Neither can the power to award costs be used to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Outcome: cited
principles that inform the exercise of the Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well accepted. That discretion is absolute and unfettered but must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Neither can the power to award costs be used to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
principles that inform the exercise of the Court's discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well accepted. That discretion is absolute and unfettered but must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Neither can the power to award costs be used to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.
Case: Ruddock v Vadarlis (2001) 115 FCR 229
Outcome: cited
well accepted are the principles informing the proper exercise of the s 43 discretion. These are: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) 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 he or she has failed; and (iii) 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 parties' costs of them. In this sense 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660 ; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Cost (2003) ch 8. Only the first of these is presently relevant.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660
Outcome: cited
well accepted are the principles informing the proper exercise of the s 43 discretion. These are: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) 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 he or she has failed; and (iii) 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 parties' costs of them. In this sense 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660 ; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Cost (2003) ch 8. Only the first of these is presently relevant.
Case: Perrett v Commissioner for Superannuation (1991) 29 FCR 581
Outcome: cited
the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7] .
Case: Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19
Outcome: cited
the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7] .
Case: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Outcome: applied
Only the first two of these causes of action are relied upon by the Applicants in a claim for interlocutory injunctive relief against the Respondents. The Respondents have sought to meet that claim for interlocutory injunctive relief not by the giving of particular undertakings but rather by submitting that, having regard to the principles which attend the granting of interlocutory injunctive relief, no claim for such relief is made out. Those principles are not in doubt. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-82, [65], Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed in this regard (at 68, [19]) stated: "The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to a relief ... The second inquiry is ... whether the inconvenience or injury which is the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.' By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial." 10 Whether or not to grant an interlocutory injunction requires the exercise of a discretion informed by the application of these principles to the circumstances of the case as revealed by the material before the court at the time of the application. 11 The Applicants' claim for infringement of copyright is not, in my opinion, a strong one on present materials.
Case: Coco v A.N. Clark (Engineers) Limited [1969] RPC 41
Outcome: cited
The elements of a claim in equity for the protection of confidential information are well settled. A person seeking such protection must be able to prove the following: &#8226; precisely what constitutes the information sought to be protected; &#8226; that a necessary quality of confidentiality reposes in that information; &#8226; that the information was received by the person against whom equitable relief is sought in such circumstances as to impart a duty of confidence; and &#8226; that there is an actual or a threatened breach of that duty of confidence in respect of the information. See Coco v A.N. Clark (Engineers) Limited [1969] RPC 41 at 48; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (1987) 14 FCR 434 at 443.
Case: Corrs Pavey Whiting &amp; Byrne v Collector of Customs (1987) 14 FCR 434
Outcome: cited
The elements of a claim in equity for the protection of confidential information are well settled. A person seeking such protection must be able to prove the following: &#8226; precisely what constitutes the information sought to be protected; &#8226; that a necessary quality of confidentiality reposes in that information; &#8226; that the information was received by the person against whom equitable relief is sought in such circumstances as to impart a duty of confidence; and &#8226; that there is an actual or a threatened breach of that duty of confidence in respect of the information. See Coco v A.N. Clark (Engineers) Limited [1969] RPC 41 at 48; Corrs Pavey Whiting &amp; Byrne v Collector of Customs (1987) 14 FCR 434 at 443. 26 Corrs Pavey Whiting &amp; Byrne v Collector of Customs (1987) 14 FCR 434 is also pertinent for the reminder given by Gummow J (at 443) as to the need in relation to a claim like the present for a plaintiff to be able to identify with precision, rather than in global terms, that which is said to be the confidential information. 27 Copies of certain drawings were exhibited to affidavits on behalf of the Applicants. An inspection of these discloses title blocks in which Linmac's name and ownership is stated. There is though, no overt claim of confidentiality or even copyright on the face of the drawings. Neither is there evidence of any written confidentiality agreement ever used at any stage by an alleged owner of the drawings in dealings with third parties. 28 There is evidence of a practice adopted by Linmac of allowing third parties to have copies of such drawings of its plans as where necessary in order to effect repairs. At best, it might perhaps be inferred that, as a matter of business practice, it was mutually understood as between Linmac or its alleged successive assignees and third parties that the drawings contained at least some confidential information.
Case: Liberty Financial Limited v Scott (No 2) [2005] VSC 26
Outcome: cited
Even assuming this is in favour of the Applicants, it is still necessary that there be some evidence of a misuse of the information. In Liberty Financial Limited v Scott (No 2) [2005] VSC 26 at [7] , Arthur J cited with approval an observation made by Whitford J in Reinforced Plastics Applications (Swansea) v Swansea Plastics and Engineering Co Limited (1979) FSR 182 at 182: "It is not really to be contemplated that proceedings of this kind should be allowed to go forward on nothing more than a speculative basis; and unless the plaintiff can show that he has some basis for a reasonable belief in his assertion that the defendants are making use of his confidential information, then the action can only be characterised as speculative and fishing, and ought not, in my judgment, to be allowed to proceed. It must be something more than a mere assertion."
Case: Reinforced Plastics Applications (Swansea) v Swansea Plastics and Engineering Co Limited (1979) FSR 182
Outcome: cited
Even assuming this is in favour of the Applicants, it is still necessary that there be some evidence of a misuse of the information. In Liberty Financial Limited v Scott (No 2) [2005] VSC 26 at [7] , Arthur J cited with approval an observation made by Whitford J in Reinforced Plastics Applications (Swansea) v Swansea Plastics and Engineering Co Limited (1979) FSR 182 at 182: "It is not really to be contemplated that proceedings of this kind should be allowed to go forward on nothing more than a speculative basis; and unless the plaintiff can show that he has some basis for a reasonable belief in his assertion that the defendants are making use of his confidential information, then the action can only be characterised as speculative and fishing, and ought not, in my judgment, to be allowed to proceed. It must be something more than a mere assertion."
Case: Ocular Sciences Limited v Aspec Vision Care Limited [1997] RPC 289
Outcome: cited
Another cautionary note was sounded by Laddie J in Ocular Sciences Limited v Aspec Vision Care Limited [1997] RPC 289 at 359: ".. it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The Courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information upon which he intends to rely in the proceedings. If the plaintiff fails to do this the Court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff's rights and may strike out the action as an abuse of process." . 31 The Respondents do not seek that the proceedings be struck out. That is not to say that the sentiments voiced in the passages just quoted are irrelevant. The First Respondent is certainly embarked upon a path that may see it come to be a competitor of the Applicants. It is a serious thing to allege that persons have breached a duty of confidence in respect of confidential information. There is force, in my opinion, in the Respondents' submission that there is no evidence that any of them have misused or are going to misuse any confidential information of the Applicants. It must be observed as well that similar difficulties to those which I have highlighted in relation to the breach of copyright claim attend the proof of the Applicants' ownership of the allegedly confidential information. Further, just what is said to constitute the information having the necessary quality of confidence is not identified with precision on the present state of the evidence. That in itself is telling as a person to whom injunctive relief is granted ought not be put in a position of doubt as to what is enjoined. 32 In short then it seems to me that, on the present state of the materials, the basis for there being a serious question to be tried is at least weak but better regarded as wanting.
Case: Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care (1995) 31 IPR 445
Outcome: applied
There is an interplay so far as the grant of interlocutory relief is concerned between the strength an applicant's claim that there exists a serious question to be tried and the balance of convenience: see for example Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care (1995) 31 IPR 445 at 455. That interplay does not, in my opinion, tell in favour in the Applicants. 37 For these reasons, I decline the application for interlocutory injunctive relief. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 15 February 2008 Counsel for the Applicants: Mr A Franklin SC Solicitor for the Applicants: Bennett &amp; Philp Solicitors Counsel for the Respondents: Mr DM Logan Solicitor for the Respondents: Clifford Gouldson Lawyers Date of Hearing: 5 February 2008 Date of Judgment: 15 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/76.html