mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291
Outcome: cited
I am satisfied that the allegations of fraud against Mr Bangad in the Suzlon companies' cross-claim, as well as the centrality of his role in the events on which the Suzlon companies rely to seek relief from the Headway companies' claims, make Mr Bangad a proper and necessary party to the proceedings: see News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256 ; (1996) 64 FCR 410 at 523G-524F per Lockhart, von Doussa and Sackville JJ; see too Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at 316-317, [77] - [78] per McHugh J; Commonwealth Bank of Australia v Peto (No 2) [2006] FCA 516 ; (2006) 152 FCR 362 at 370-372 [27] , [30]-[33] per myself.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1987) 147 CLR 589
Outcome: cited
Nicholls said that the evidence which would support the application for a review of the decisions, which had been impugned in the proceedings before Mansfield J was different than that which had been adduced before his Honour in the proceeding disposed of on 15 January 2009. He said he had obtained information during the currency of those proceedings and the proceedings disposed of by Mansfield J on 23 July 2009 and under the Freedom of Information Act , which would allow him to challenge those decisions on other evidential bases. In my opinion, that also is not a good reason to stay the orders of 23 July 2009 made by Mansfield J. The time for Mr Nicholls to adduce evidence in relation to the decisions in which he complained was in the proceeding brought before Mansfield J which was disposed of in his orders of 15 January 2009. It is not appropriate for the applicant to split his case or split his applications and rely upon different evidence for a review of the same decisions: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. In my opinion, the fact of the issue of the proceedings in the Federal Magistrates Court does not support the application for a stay. The application then for a stay of Mansfield J's orders of 23 July 2009 is refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 4 September 2009 Counsel for the Applicant Ms L Chapman Solicitor for the Applicant Australian Government Solicitor The Respondent appeared in person. Date of Hearing: 25 August 2009 Date of Judgment: 25 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1002.html
Case: IW v Perth and Others [1997] HCA 30 ; (1997) 191 CLR 1
Outcome: discussed
Having regard to the finding just referred to, the Federal Magistrate did not err in dismissing the appellant's application. However, for my part, a surer foundation for dismissing the application is found in s 5 and not s 24. The DD Act is beneficial legislation. As Dawson and Gaudron JJ observed in IW v The City of Perth and Others [1997] HCA 30 ; (1997) 191 CLR 1 at 22: In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose". For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit.
Case: Bozson v Altrincham Urban District Council [1903] 1 KB 547
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225
Outcome: cited
usual rule is that costs follow the event; accordingly the appropriate order is that Mr Conde bear Mr Hunter's costs in respect of this notice of motion. Mr Hunter has sought an order that the costs be awarded on an indemnity basis, however I am not prepared to make an order to that effect. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534. A well-known summary of the principles relevant to the exercise of judicial discretion to award indemnity costs can be found in Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . Circumstances in which an award of indemnity costs may be warranted include commencement of proceedings where the litigant properly advised should have known there was no chance of success, allegations of fraud by the litigant knowing them to be false, evidence of particular misconduct in the litigant, and where the justice of the case justifies such an order. In this case, while I have found that Mr Conde's grounds of appeal have no arguable basis, it does not automatically follow that he should be liable to Mr Hunter for indemnity costs. The fact that a number of his claims required some consideration, and the absence of any apparent delinquency or extraneous or improper purpose in Mr Conde, in my view warrant an order for party-party costs only.
Case: Conde v Hunter [2009] FMCA 751
Outcome: cited
Conde commenced proceedings in the Federal Magistrates Court to have the bankruptcy notice set aside and interim orders granting an extension of time for him to comply with the bankruptcy notice. The matter came before Wilson FM, who dismissed the application to set aside the bankruptcy notice ( Conde v Hunter [2009] FMCA 751). In his reasons for decision, his Honour found in summary as follows: Mr Conde made no attack on the form of the bankruptcy notice itself. Although Mr Conde contended that Mr Hunter did not have a final judgment or final order (the execution of which had not been stayed in terms of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (" Bankruptcy Act ")) the argument was misconceived. His Honour continued: A final order is one that disposes finally of an issue between the parties. The concept of what is a final order is discussed in cases such as Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. In this case, the issue was who should pay the costs of the application to set aside the applicant's pleading. The order made by Judge Searles was a final order, insofar as it concerned that issue. His Honour ordered that the applicant pay the respondent's costs. There is no merit in the first ground sought to be advanced by the applicant. (at [3]) Notwithstanding Mr Conde's prospective challenge to Orders 3 and 4 of Searles DCJ, it was clear on the material before his Honour that: because the order sought to be challenged on appeal was only as to costs, leave to appeal was required by the Court of Appeal; the application for leave to appeal was filed many months out of time and therefore required an order from the Court of Appeal granting an extension of time. The Federal Magistrate noted that no contest had been made against the Orders 1 and 2 made by Searles DCJ, namely to strike out Mr Conde's amended statement of claim and give leave to Mr Conde to replead in that Court. The Federal Magistrate considered that, in those circumstances and having read Mr Conde's application to the Court of Appeal and supporting affidavit, that application to the Court of Appeal has no prospects of success. It followed that no good reason was shown for either setting aside the bankruptcy notice or extending time for compliance with it to await the outcome in the Queensland Court of Appeal. Accordingly the Federal Magistrate dismissed the application to set aside the bankruptcy notice. Appeal from decision of the Federal Magistrate While failure of a Court to consider an issue before it and supporting submissions may constitute a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd [1996] HCA 1 ; (1996) 134 ALR 433) I can draw no inference that his Honour had regard only to the submissions filed by Mr Hunter and ignored either the substance of Mr Conde's case or the provisions of the Bankruptcy Act and rules. It is clear from reviewing the decision of the Federal Magistrate ( Conde v Hunter [2009] FMCA 751) that his Honour:
Case: Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201
Outcome: cited
application for leave to appeal from the order to which a bankruptcy notice relates can constitute "proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued" for the purposes of s 41(6A) and (6C) ( Jenkins v National Australia Bank Ltd [1999] FCA 1758 , Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201 at [20] ). However the exercise of the Court's power under s 41(6A) to extend time for compliance with the bankruptcy notice is discretionary: Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201. In this case the Federal Magistrate refused to grant an order extending time to Mr Conde to comply with the bankruptcy notice. This is because, after consideration of the nature of the prospective application to the Court of Appeal of Queensland, the Federal Magistrate was satisfied that Mr Conde had no prospects of success in relation to either his application for an extension of time to apply for leave to appeal from the orders of Searles DCJ, or the actual application for leave to appeal. As is well known from the decision of the High Court in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 in respect of appeals against the exercise of judicial discretion: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)
Case: Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326
Outcome: cited
question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.
Case: Franks v Warringah Council, in the matter of Franks [2003] FCA 1047
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: Genovese v BGC Construction Pty Ltd [2007] FCA 923
Outcome: cited
question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.
Case: InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Outcome: cited
usual rule is that costs follow the event; accordingly the appropriate order is that Mr Conde bear Mr Hunter's costs in respect of this notice of motion. Mr Hunter has sought an order that the costs be awarded on an indemnity basis, however I am not prepared to make an order to that effect. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534. A well-known summary of the principles relevant to the exercise of judicial discretion to award indemnity costs can be found in Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . Circumstances in which an award of indemnity costs may be warranted include commencement of proceedings where the litigant properly advised should have known there was no chance of success, allegations of fraud by the litigant knowing them to be false, evidence of particular misconduct in the litigant, and where the justice of the case justifies such an order. In this case, while I have found that Mr Conde's grounds of appeal have no arguable basis, it does not automatically follow that he should be liable to Mr Hunter for indemnity costs. The fact that a number of his claims required some consideration, and the absence of any apparent delinquency or extraneous or improper purpose in Mr Conde, in my view warrant an order for party-party costs only.
Case: Jenkins v National Australia Bank Ltd [1999] FCA 1758
Outcome: cited
application for leave to appeal from the order to which a bankruptcy notice relates can constitute "proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued" for the purposes of s 41(6A) and (6C) ( Jenkins v National Australia Bank Ltd [1999] FCA 1758 , Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201 at [20] ). However the exercise of the Court's power under s 41(6A) to extend time for compliance with the bankruptcy notice is discretionary: Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201. In this case the Federal Magistrate refused to grant an order extending time to Mr Conde to comply with the bankruptcy notice. This is because, after consideration of the nature of the prospective application to the Court of Appeal of Queensland, the Federal Magistrate was satisfied that Mr Conde had no prospects of success in relation to either his application for an extension of time to apply for leave to appeal from the orders of Searles DCJ, or the actual application for leave to appeal. As is well known from the decision of the High Court in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 in respect of appeals against the exercise of judicial discretion: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)
Case: Kayo Contractors v Fernandez (1984) 71 FLR 34
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
usual rule is that costs follow the event; accordingly the appropriate order is that Mr Conde bear Mr Hunter's costs in respect of this notice of motion. Mr Hunter has sought an order that the costs be awarded on an indemnity basis, however I am not prepared to make an order to that effect. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534. A well-known summary of the principles relevant to the exercise of judicial discretion to award indemnity costs can be found in Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . Circumstances in which an award of indemnity costs may be warranted include commencement of proceedings where the litigant properly advised should have known there was no chance of success, allegations of fraud by the litigant knowing them to be false, evidence of particular misconduct in the litigant, and where the justice of the case justifies such an order. In this case, while I have found that Mr Conde's grounds of appeal have no arguable basis, it does not automatically follow that he should be liable to Mr Hunter for indemnity costs. The fact that a number of his claims required some consideration, and the absence of any apparent delinquency or extraneous or improper purpose in Mr Conde, in my view warrant an order for party-party costs only.
Case: Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439
Outcome: cited
this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.