case_text: Whilst paragraph 37(a) is not the subject of MWO's application to amend, paragraphs 40A and 41 are. It is, as Telstra submitted, unclear from the proposed pleading whether MWO is alleging that it has received a total of remuneration that is less than that to which it is entitled under the 2003 agreement, or whether it is alleging that there are specific unpaid items and it does not know if the total amount of remuneration that it was paid was less than its entitlement. The proposed particularisation of the alleged loss and damage by reference to the taking of a proper account and enquiry at a later date fails to state with sufficient clarity the case that Telstra must meet at trial. As Gleeson CJ said in Goldsmith v Sandilands [2002] HCA 31 ; (2002) 76 ALJR 1024 at 1025 [2] : "The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to the facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but 'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial'." (Citation omitted) MWO's particulars under paragraph 41 fail in this regard. Telstra is entitled to have, by way of particulars to MWO's pleading, the details referred to in [53] above as best MWO can provide them and, if it cannot provide such details as fully as it would wish, then Telstra is entitled to have MWO state what MWO requires to complete this task. This obligation cannot be discharged simply by providing some information to Telstra through letters from MWO's solicitors. 56 Accordingly, pursuant to O 13 r 2 of the Rules, I would grant leave to MWO to amend its application and statement of claim in accordance with the SFASC, which is exhibit NJA 20 to the affidavit of Mr Anderson sworn 8 June 2006 and in accordance with these reasons, including further and better particulars of paragraph 41. 57 MWO and Telstra disagreed as to the disposition of the applicant's motion if the applicant were unsuccessful. In all the circumstances, and in particular having regard to the outcome of the principal applications made on the motion, I would dismiss the applicant's motion. I would order that the applicant pay the respondents' costs of the motion.


case_outcome: cited

case_text: Justice Gordon proceeded upon the basis that an appeal does not operate as a stay but that the Court could grant a stay if the Court considers that, in all the circumstances, the matter is an appropriate case for the grant of the stay. The approach adopted by her Honour was undoubtedly right. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 the Full Court of this Court, after observing that O 52 r 17 did not limit the broad discretion reposing in the Court, followed a decision of the Court of Appeal in New South Wales in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 where it was said at 694 that it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour." In other words, no special or exceptional circumstances need be shown. It is enough to satisfy the Court that the proceeding is one where it is appropriate that the Court exercise its discretion to grant the order.


case_outcome: referred to

case_title: Bahonko v Sterjov [2007] FCA 867

case_text: On 24 May 2007 during the proceeding before Jessup J and before its determination, the applicant made an oral application for leave to file a statement of charge for contempt against the respondents and their legal representatives and to challenge the competency of two of the witnesses called on behalf of the respondents, amongst other things. Those applications were refused by Jessup J: Bahonko v Sterjov [2007] FCA 867. 6 On 30 May 2007 the applicant sought leave to appeal from Jessup J's refusal to grant leave, but on 9 June 2007 Finkelstein J directed the Registrar that the notice of motion of 30 May 2007 be refused for filing. 7 In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244. 57 The fourth order sought in the notice of motion before Gordon J, insofar as it sought to impugn Finkelstein J's direction, was again, with respect, misconceived. Justice Finkelstein made a direction pursuant to O 46 r 7A(2)(b) of the Rules that the Registrar refuse for filing the notice of motion seeking leave to appeal from Jessup J's decision not to grant leave to file the statement of charge for contempt.


case_title: Bahonko v Sterjov [2007] FCA 1244

case_text: In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244.


case_title: Bahonko v Sterjov [2007] FCA 1341

case_text: On 31 August 2007 Jessup J made orders as to costs in the substantive proceedings: Bahonko v Sterjov [2007] FCA 1341. The orders made by Jessup J on 31 August 2007 were: 1. The applicant pay the respondents' costs of proceeding VID 756/2006 to the extent that such costs were incurred on or before 6 November 2006. 2. The applicant pay three-quarters of the respondents' costs of and incidental to the applicant's notice of motion dated 22 September 2006. 3. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 27 October 2006. 4. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 5 February 2007. 5. The applicant pay one-half of the balance remaining of the respondents' costs of the proceeding to the extent that such costs were incurred after 6 November 2006 after the deduction of so much of the respondents' costs of the notice of motion referred to in orders 2, 3 and 4 above as were incurred after 6 November 2006. 12 On 21 September 2007 the applicant amended her notice of appeal to include grounds of appeal against the orders made by Jessup J for costs on 31 August 2007. 13 There were two notices of motion before Gordon J. In the first notice of motion (VID 743/2007) the applicant sought the following relief in these terms: 1. Transcripts of proceedings in the matters VID 114/06 and VID 756/06 be made available to the appellant: (a) in an electronic form; or (b) in a printed form. 2. Orders given by Justice Jessup on 31 August 2007 to stay until the appeal is fully determined. 3. Mr. M. McKenney and Mr Felix Vitiello to step down from a legal representation in the appeal matter VID 743/07. 4. Appellant's claims of Contempt of the Court by Mr. McKenney, Mr. Vitiello, the Defendants and their witness Ms. Esther Keji Matthew to be determined prior to the appeal hearing & the Contempt of the Court proceeding is deemed to commenced.


case_title: Bahonko v Sterjov [2007] FCA 1377

case_text: On 27 August 2007 Goldberg J dismissed the application to stay the orders made by Jessup J on 15 August 2007: Bahonko v Sterjov [2007] FCA 1377. Justice Goldberg decided that there was no need for a stay of the first three orders made by Jessup J. Orders 1 and 3 would be considered on appeal. Order 2 was in the applicant's favour. He considered the applicant's argument that order 4 be stayed, but rejected a stay because the order simply required the parties to file and serve submissions on costs. His Honour was not prepared to interfere with the trial process. He said that if an adverse costs order was made against the applicant she could appeal and, if it were appropriate, seek an order for a stay. In his reasons, Goldberg J rejected the applicant's very serious complaints about the trial judge and the respondents' legal advisers, which he described as being without basis and unsupported by the evidence. 19 The first notice of motion challenged Jessup J's orders for costs and sought other relief including access to transcript. The second notice of motion purported to be an application for leave to appeal from Goldberg J's decision of 27 August 2007 refusing to stay Jessup J's orders of 15 August 2007 and consequential relief. 20 The amended notice of motion for hearing before me seeks the following orders: 1. Appellant is given leave to appeal from the orders NO: 2 and 3 given by Justice Gordon on 8 October 2007 and a part of the order 1, which part is not granting appellant an access to Transcripts of proceedings in VID 114/06 & VID 756/06 in full. (a) All Transcripts be provided in full. 2. The Notice of Appeal from Justice Gordon's orders NO: 2 and 3 and part of the order 1 to be consolidated with the existing Notice of appeal in the matter No: VID 743/07. 3. Appellant has leave to amend her Notice of Appeal in VID 743/07 to include appeal from Justice Gordon's orders No: 2 and 3 and part of the order 1 of 8 October 2007. 4. Transcripts of proceedings before Justice Gordon on 8 October 2007 be made available to the appellant & be part of the leave to appeal hearing. 5. The matter VID 822/07 is an integral part of VID 743/07 as Justice Gordon shared decision in those matters. 6. Appellant is given leave to appeal from judgments & whole of the orders of Justice Gordon given on 8 October 2007 in VID 822/07 and paragraphs 2,3 & 4 applies to this leave & those orders are treated as if given in VID 743/07. 7. Defamatory of the appellant parts of the reasons for judgments given by Justice Gordon on 08/10/07 are removed, replaced with corrective statements and apology statements and damages are paid to the appellant by the Federal Court of Australia. 8. Mr McKenney and Mr F Vitiello are charged with the contempt of the court and wilful defamation of the appellant in the principal matter VID 114/06 and the consequential matters VID 743/07 and VID 822/07 and pay damages to the appellant & are restrain from participation in any of her matters. 9. The Federal Court of Australia & the Commonwealth of Australia are added as parties to proceedings: VID 949/07 and the principal Appeal proceedings VID 743/07. 10. Justice Gordon is suspended from her office having engaged in a wilful and criminal defamation of the appellant in VID 828/07. 21 At the hearing the applicant sought to and was given leave to amend paragraph 9 by deleting reference to the Federal Court of Australia and by deleting paragraph 10 and substituting: 10. Justice Gordon is directed to review her reasons for judgment in proceedings VID 822/07. Those two amendments were made during her address to the Court on 1 November 2007. 24 Paragraph 1 of the notice of motion before me seeks leave to appeal from Gordon J's orders on the first notice of motion. Paragraphs 2 to 5 seek consequential orders on the assumption that the leave sought in paragraph 1 be granted. Paragraph 6 seeks leave to appeal from Gordon J's orders dismissing the applicant's application by a second notice of motion for leave to appeal from Goldberg J's refusal to grant a stay of Jessup J's orders. Paragraph 8 is a similar application to that for which Jessup J refused leave during the trial and dismissed by Gordon J in the first notice of motion. Paragraphs 7 and 10 (even as amended) are scandalous. Paragraph 9 is misconceived. I will deal with each of these paragraphs in turn below. 25 The applicant has raised three separate issues within paragraph 1 of the notice of motion before me. 26 I will first deal with that part of paragraph 1 which complains of Gordon J's refusal to order that the applicant have access to the whole of the transcript at trial. 27 I should note that, before Gordon J, the applicant sought transcript from proceedings VID 114/06 and VID 756/06 which were the proceedings before Jessup J. As noted above, however, Jessup J consolidated those two proceedings, such that the applicant's complaints were all heard as matter VID 114/06. It was under that proceeding that Jessup J made orders in relation to both the substantive proceedings and costs. 28 Justice Gordon gave the applicant access to an electronic form of the transcript of the witnesses at the trial. It is not clear what other transcript is sought. The applicant mentions in her affidavit that she does not have access to the transcript before Goldberg J and Gordon J but that transcript, if it exists, is not evidence and could not be remotely relevant on the appeal or, indeed, on this application. I will assume that the applicant is seeking that part of the transcript before Jessup J not subject to the order made by Gordon J. I will assume that the applicant could appeal from Gordon J's refusal to order that the further transcript be made available, although I doubt that the order is appealable. 29 However, even upon those assumptions the order sought should not be made. It has not been demonstrated that the transcript of what was said during the trial and was not evidence is relevant. Even if it were relevant, Gordon J's order does not prevent the applicant accessing the transcript. The applicant can, if she orders the transcript and pays the fee, have a copy of the transcript. Justice Gordon's order simply means that the Court will not be put to the cost of providing to the applicant a transcript of that part of the proceeding which does not contain evidence and has not been shown to be relevant. Insofar as leave is sought to appeal from the refusal of Gordon J to order that a transcript be made available to the applicant, it is refused. 30 In paragraph 1 of the current notice of motion, the applicant also seeks leave to appeal from order 2 made by Gordon J on 8 October 2007 on the first notice of motion. 31 The application before Gordon J sought the stay of the costs order made by Jessup J on 31 August 2007 until the appeal was determined. Order 2 made by Gordon J on the first notice of motion dismissed the other orders sought in the notice of motion which had the effect that the applicant's application for a stay of Jessup J's costs order was dismissed. It also had the effect of dismissing the application in the notice of motion that the respondents "step down" from representing the respondents. Leave to appeal is sought from that order. 35 Justice Gordon was asked to consider the question of a stay in relation to costs in circumstances where Goldberg J had considered and refused a stay of the substantive orders made by Jessup J. Justice Goldberg was not prepared to interfere with the trial process and stay Jessup J's order which required the parties to file and serve submissions on costs. 36 When the matter came before Gordon J the applicant had already amended her notice of appeal to add grounds of appeal against the costs orders made by Jessup J on 31 August 2006. 37 Before Gordon J the applicant asserted that Jessup J's orders contravened the WRA and that "[t]here were and are not any costs due against me." She claimed in her affidavit that the "manner of the orders given by Justice Jessup on 31 August 2007 further demonstrate that those orders are unreasonable & if remain would constitute abuse of the process and continuation of a fraud." She also alleged that his reasons constituted "multiple wilful misrepresentations, defamations and vilification of me ...". She criticised other aspects of Jessup J's reasons. Putting aside the inappropriate language, the reasons advanced may have been relevant as to whether the order for costs should have remained or were to be reviewed on appeal. However, Gordon J was not hearing an appeal but an interlocutory application for a stay. No ground was advanced why it was appropriate that the orders be stayed. 38 There was no evidence before Gordon J that the taxation of the respondents' costs was imminent or was likely to occur prior to the hearing of the appeal in relation to the substantive matter. That of itself would have been sufficient reason for Gordon J to dismiss the application because no need was demonstrated for the order sought. Justice Gordon, however, dismissed the application because the primary matter of substance advanced in support of the application was that "[t]here were and are not any costs due against me." Justice Gordon said that was an issue for the appeal. Her Honour's decision was undoubtedly correct. The matters raised by the applicant might be relevant to the appeal before the Full Court but were not relevant to the stay application. 39 Justice Gordon described the additional matters relied on by the applicant as "scandalous and vexatious", being allegations of criminal conduct and conduct constituting abuse of office which were "unsupported and insupportable". I agree with those observations. 40 There is a further reason to refuse leave. If leave were granted the appeal against Gordon J's refusal to grant a stay would be, assuming the other orders sought by the applicant were granted, heard at the same time as the appeal against the substantive orders and the appeal against costs. The purpose of a stay prior to the hearing of the appeal would not be achieved. It follows that an order granting leave to appeal against Gordon J's refusal to grant a stay would be futile in those circumstances. 41 If the Full Court is of the opinion that the appeal against either the substantive orders or the costs orders is likely to succeed it can, on the applicant's application or its own motion, make an order for a stay. 42 Order 2 of her Honour's order on this notice of motion also had the effect of dismissing the applicant's application that the respondents' legal representatives step down. Her Honour dismissed that application on the ground that the allegations made in support of the notice of motion were without foundation and scandalous. I have studied the allegations contained in the applicant's affidavit sworn on 20 September 2007 which was the affidavit relied upon by the applicant before Gordon J and the affidavit sworn on 30 October 2007 in support of this notice of motion before me. I agree with her Honour in both respects. The allegations are without foundation and scandalous. I make these comments notwithstanding the vitriolic comments made by the applicant in respect of Gordon J's comments to the same effect. 43 Leave to appeal must be refused because her Honour's decision is not attended by any doubt and, moreover, no injustice would be suffered by the applicant if leave were refused. 44 In Order 3 of the notice of motion before her, Gordon J ordered the applicant to pay the respondents' costs. Such an order was inevitable having regard to the order made refusing the stay. Insofar as this notice of motion seeks leave to appeal from her Honour's order for costs, it should be dismissed. 45 Paragraphs 2, 3, 4 and 5 of the notice of motion would only need to be considered if, contrary to my opinion, leave ought to be granted from Gordon J's decision in relation to orders 2 and 3 and part of order 1 of the orders made by Gordon J on 8 October 2007. The applications made under these paragraphs must also be dismissed. 46 The order sought in paragraph 6 of the notice of motion is somewhat different. That application seeks leave to appeal from the decision of Gordon J in VID 822/2007 also given on 8 October 2007, which related to a second notice of motion before her Honour. The orders which were sought in that proceeding are set out at [16] above. 47 Her Honour dismissed that notice of motion. Because her Honour refused leave to appeal from the orders of Goldberg J of 27 August 2007, she was also bound to dismiss paragraphs 2, 3 and 4 of the notice of motion which sought orders consequential upon the applicant obtaining leave. 48 The applicant now seeks leave to appeal from Gordon J's refusal to grant leave to appeal from Goldberg J's order refusing a stay of the order in the substantive proceedings made by Jessup J on 15 August 2007. 49 For reasons which follow, the application is misconceived. But not only is the application misconceived it is pointless and a waste of the Court's resources and a burden upon the respondents. 50 Justice Goldberg refused a stay of Jessup J's orders of 15 August 2007 for the reasons recited in [10] of these reasons. He was undoubtedly right. There was no practical utility in granting a stay order when orders 1 and 3 dismissed the applicant's proceeding and order 2 was in the applicant's favour. There was nothing in those orders to stay. He refused to order a stay of order 4 made by Jessup J. That order is no longer relevant as further orders have been made. Those further orders have already been addressed in respect of paragraph 1 of this notice of motion. 52 But even if there were a need for a stay order and even if I had power to grant leave to appeal from Gordon J's refusal to grant leave, which I do not, the order sought would be pointless. Like the application in paragraph 1, if leave were granted the appeal against Goldberg J's refusal to grant a stay would be heard at the same time as the appeal against the substantive orders. If that were the case, there would be no stay pending the appeal. It follows that the application is pointless for that further reason. 53 However, in any event, the application for leave to appeal from Gordon J's order refusing leave to appeal from Goldberg J is misconceived. 54 Justice Gordon's refusal to grant leave to appeal from Goldberg J was an exercise by her Honour of the Court's appellate jurisdiction pursuant to s 24(1A) and s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth). Section 24(1) of the Act gives the Court jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge: s 24(1)(a). However, s 24(1A) requires that where the judgment is an interlocutory judgment the appellant first obtain leave to appeal from the Court or a judge. Section 25(2)(a) provides that an application for leave to appeal may be heard and determined by a single judge or the Full Court. Order 52 rule 2AA of the Rules provides that an application under s 25(2) should be heard by a single judge unless one of the events in the rule occurs. 56 This application for leave to appeal must therefore be dismissed as incompetent. Because no appeal lies from Gordon J's refusal to grant leave to appeal, it follows that no appeal lies from her Honour's refusal to make the second and third orders in the second notice of motion before her Honour which, as I have said, were consequential upon the applicant being granted leave. 57 The fourth order sought in the notice of motion before Gordon J, insofar as it sought to impugn Finkelstein J's direction, was again, with respect, misconceived. Justice Finkelstein made a direction pursuant to O 46 r 7A(2)(b) of the Rules that the Registrar refuse for filing the notice of motion seeking leave to appeal from Jessup J's decision not to grant leave to file the statement of charge for contempt. 75 The applicant has filed applications before Finkelstein J, Goldberg J, Gordon J and now me in which she has successively made complaints about the conduct of judges of this Court and of the legal practitioners representing the respondents. Latitude is given to unrepresented parties because sometimes they may have difficulty in understanding the Court's processes. Sometimes unrepresented parties become very involved in the processes and express themselves infelicitously. However, there comes a time when the Court must, for the purpose of maintaining the dignity of the Court and the public's confidence in the Court, say enough is enough. That stage has been reached. The applicant must understand that, if she continues to make unsubstantiated allegations of the kind in the application, affidavits and draft notices of appeal which scandalise the Court, action may need to be taken for the protection of the Court. I have considered whether it might be appropriate to take action in this proceeding. However, the applicant has not previously been warned that her conduct may be considered to be a contempt of the Court. I have therefore determined that on this application she should be given this warning. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 14 November 2007 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr M McKenney Solicitor for the Respondent: Mr F A Vitiello Date of Hearing: 1 November 2007 Date of Judgment: 14 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1717.html


case_title: Bahonko v Sterjov [2007] FCA 1555

case_text: This is an application for leave to appeal and for consequential orders from orders made by Gordon J on 8 October 2007. There were two separate notices of motion before Gordon J. She made orders in each of the proceedings and published separate reasons for those orders: Bahonko v Sterjov [2007] FCA 1555 ; Bahonko v Sterjov [2007] FCA 1556. The orders made in both proceedings are the subject of this application for leave to appeal.


case_title: Bahonko v Sterjov [2007] FCA 1556


case_title: Bird v Free (1994) 126 ALR 475

case_text: Each judge, when exercising the jurisdiction of the Court, is sitting as "the Court". In those circumstances, no one judge sitting as the Court can direct another judge, also sitting as the Court, to do or not to do something and, in particular, to review the judge's reasons or in any way alter those reasons: Bird v Free (1994) 126 ALR 475. It goes without saying, of course, that no judge could direct another judge to apologise to a litigant or to pay damages to that litigant. 62 For those reasons, the applications must be dismissed.


case_text: A direction under O 46 r 7A is made by a judge to assist the Registrar in the administration of the Registry and "is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.": Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at 357. Thus, it is not a judgment which is subject to appeal by a person whose document has been rejected by the Registrar in accordance with a direction given by a Judge. 59 Paragraph 6 of the notice of motion seeking leave to appeal from Gordon J's orders in relation to the second notice of motion must be dismissed. 60 Paragraphs 7 and 10 of the notice of motion seem to assume that a judge of the Court has some sort of supervisory jurisdiction over another judge of the Court or at least the reasons published by another judge of the Court. Nothing could be further from the fact. The notion of the independence of the judiciary is fundamental to the system of justice in this country. It is not only that judges are independent of the Executive but each judge of the Court is independent of each other. It is important that judges are not subject to influences or pressures from their fellow judges so that each judge can give their judgment and their reasons freely. A judge's judgment and reasons are subject to scrutiny but only on appeal.


case_text: The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons.


case_text: The test for leave to appeal is well known. An applicant must establish that the decision is attended with sufficient doubt to warrant the decision being reconsidered by the Full Court and, as well, that substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 33 Order 52 rule 17(1) of the Federal Court of Australia Rules 1979 (Cth) (the Rules) provides that an appeal to the Full Court does not operate as a stay of execution or of proceedings under the judgment appealed from. Thus it is that the applicant needed a stay of the proceedings to prevent the respondents taxing their costs and when taxed, executing upon the taxed costs.


case_text: The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons. 64 In Fingleton 216 ALR at 485-6, Gleeson CJ cited with approval Lord Denning's dicta in Sirros v Moore [1975] QB 118 at 132: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.


case_title: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65


case_title: Reid v Nairne (1985) 60 ALR 419

case_text: Sections 24(1A) and 25(2)(a) make it clear that the appellate jurisdiction to grant or refuse leave is to be exercised by either a single judge or the Full Court but not both. A party seeking leave is not entitled first to apply to a single judge and, if unsuccessful, then to apply to the Full Court. That follows because, to use the words of s 25(2)(a), the application has been determined by the single judge. It follows that no appeal lies from an order of a Judge granting or refusing leave to appeal: Reid v Nairne (1985) 60 ALR 419; Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.


case_title: Sirros v Moore [1975] QB 118

case_text: In Fingleton 216 ALR at 485-6, Gleeson CJ cited with approval Lord Denning's dicta in Sirros v Moore [1975] QB 118 at 132: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.


case_title: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424


case_title: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543


case_title: Australian Securities & Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 58 ACSR 141

case_text: Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities & Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.


case_title: CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98

case_text: The word "beneficiary" reaches beyond a person who has a beneficial interest in the trust property. It is possible for the legal estate in land to be vested in "trustees" without equitable ownership being vested in someone else. The trustees must, however, owe fiduciary obligations in respect of the trust property to persons who, although they may have no interest in the trust property and may never have an interest in the trust property, are called "beneficiaries". In CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53 ; (2005) 224 CLR 98 , the High Court rejected (at [25]): a "dogma" that, where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else because it is an essential attribute of a trust that it confers upon individuals a complex of beneficial legal relations which may be called ownership. That is to say, there can be a trustee who owes fiduciary obligations in respect of trust property to "beneficiaries" without any of the latter having a beneficial interest in the property.


case_title: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; (1968) AC 553


case_text: In Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625, Walton J considered the meaning of the expression "absolutely entitled as against the trustee" under the predecessor of s 46(1), namely, s 22(5) of the Finance Act 1965 (UK). His Lordship said (at 637): Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. Reference may also be made to Tomlinson (Inspector of Taxes) v Glyns Executor & Trustees Co [1969] 1 All ER 700 at 704 and [1970] 1 All ER 381 at 383-384 (per Lord Denning MR), and Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. In Herdegen , Gummow J distinguished between "active" and "passive" trusts, and said of a "bare" trust: Today the usually accepted meaning of "bare" trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. The beneficiary may of course hold the equitable interest upon a sub-trust for others or himself and others ...


case_title: In re Gulbenkian's Settlements [1970] AC 408


case_title: Kent v "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12

case_text: Clause 8.3 is unfortunately only a heading: "Power to Sell and Vary Investments" without any associated text. However, cl 8.4 empowers the Trustees "to make or vary any of the investments authorised under [the] Deed ...". The Trustees had power to sell the Property, as they did only six days after the Trusts were established. Even if Helen had an interest in the half interest the subject of Helen's Trust as at 28 June 2002, the Trustees' power of sale would have made it a defeasible interest: see Kent v SS "Maria Luisa" (No 2) [2003] FCAFC 93 ; (2003) 130 FCR 12 at [71] . It would cease to be defeasible only when the half interest ceased to be part of Helen's Fund and subject to the Trustees' power of sale. 66 Helen was not entitled to the half interest once it was subjected to the Trust. Her only entitlement was to require the Trustees to pay her money once the conditions of her entitlement were satisfied. 67 Clause 5.4 of the Deed provided relevantly, as follows: Fund Subject to Relevant Requirements This Deed shall be read and construed on the basis that the provisions of the Relevant Requirements are incorporated in the Deed to the extent that they impose covenants or obligations on the Trustee in order for the Fund to qualify for concessional Taxation treatment and this Deed shall be further read and construed on the basis that where there is any inconsistency between a provision in this Deed and a provision under the Relevant Requirements the latter shall prevail... The expression "Relevant Requirements" was defined in cl 4 of the Deed as follows: 'Relevant Requirements' means any requirements under the Occupational Superannuation Standards Act 1987 , the Occupational Superannuation Standards Regulations , the Superannuation Industry (Supervision) Act 1993 and any other Acts or Regulations which the Trustee must comply with in order for the Fund to qualify for concessional Taxation treatment as a Complying Superannuation Fund including the requirements under any other proposed requirements, rulings, announcements or obligations which the Trustee believes will have effect retrospectively. Clause 26 provided: COMPLIANCE WITH THE ACT The requirements contained in the Act with which the Fund must comply shall be deemed to be included in this deed and in the event of any inconsistency or conflict between the requirements of the Act and the provisions of this Deed the trustee shall act or refrain from acting notwithstanding anything to the contrary or otherwise contained in this Deed, in order to comply with the requirements of the Act and the relevant provisions of this Deed shall be deemed to be invalid. The expression "Act" was defined in cl 4 as follows: 'Act' means the Income Tax Act and the Superannuation Industry (Supervision) Act and any legislation amending or replacing those acts, the Regulations and any other law of the Commonwealth or any State or Territory of Australia (including where applicable any relevant determination ruling or guideline made or issued by any Responsible Authority pursuant to any powers vested in it) with which the Fund and / or the Trustees must comply in order to qualify for the maximum concessions in respect of the Taxation of the income of the Fund in order to obtain what the Trustees consider to be any other relevant concession or to avoid what the Trustees consider to be a relevant penalty or imposition; Finally, the expression "Income Tax Act" is defined in cl 4 to mean: 'Income Tax Act" means the Income Tax Assessment Act (1936) and the Income Tax Assessment Act (1997) and any act amending or replacing those acts and the Income Tax Regulations any regulations amending or replacing those acts;


case_title: McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424


case_text: In Public Curator of Queensland v Union Trustee Company of Australia Ltd [1922] HCA 28 ; (1922) 31 CLR 66 at 74, Higgins J noted: Those who are solely and absolutely entitled to receive money from trustees are entitled to ignore the specific mode and time of payment directed by the testator, to "break the trust", as it is called, and to claim immediate payment without the delay and formalities prescribed by the will (Saunders v Vautier (1841) 4 Beav. 115 ; Cr & Ph., 240, Harbin v Masterman (1894) 2 Ch. 184; (1895) A.C. 186 , and other cases).


case_title: R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59


case_title: Re Denley's Trust Deed ; Holman v HH Martyn & Co Ltd [1968] 3 All ER 65

case_text: According to the ordinary meaning of the word, a beneficiary is any person for whose benefit a trust is to be administered and who is entitled to enforce the trustee's obligation to administer the trust according to its terms. It is trite that for every trust there must be a "beneficiary" so understood (see, for example, Re Denley's Trust Deed ; Holman v HH Martyn & Co Ltd [1969] 1 Ch 373 at 382-384). A beneficiary is not simply a person who as a matter of fact obtains some practical benefit from the existence of a trust: Sacks v Gridiger (1990) 22 NSWLR 502 at 508.


case_title: Sacks v Gridiger (1990) 22 NSWLR 502


case_outcome: discussed

case_title: Saunders v Vautier (1841) 4 Beav 115

case_text: The concept of absolute entitlement against the Trustee is related to the well known case of Saunders v Vautier (1841) 4 Beav 115. In substance, it was held in that case that where a beneficiary is absolutely and indefeasibly entitled to a trust asset as against the trustee, the beneficiary is entitled to terminate the trust and require the trustee to transfer the asset to him or her or at his or her direction. In order to invoke the rule, multiple beneficiaries can come together so that their beneficial interests exhaust the beneficial entitlement to the asset. For example, the rule could be invoked by a life tenant and the remainder man: since their interests in combination exhaust the beneficial interest in the subject property, in combination they are entitled to direct the trustee to transfer the property as they will. 60 In Public Curator of Queensland v Union Trustee Company of Australia Ltd [1922] HCA 28 ; (1922) 31 CLR 66 at 74, Higgins J noted: Those who are solely and absolutely entitled to receive money from trustees are entitled to ignore the specific mode and time of payment directed by the testator, to "break the trust", as it is called, and to claim immediate payment without the delay and formalities prescribed by the will (Saunders v Vautier (1841) 4 Beav. 115 ; Cr & Ph., 240, Harbin v Masterman (1894) 2 Ch. 184; (1895) A.C. 186 , and other cases). 62 It will be noted that unlike the position under the rule in Saunders v Vautier , subs (5) of s 104-55 and of s 104-60 applies only to trusts of which there is a "sole beneficiary". Moreover, the provision requires the sole beneficiary to be absolutely entitled "to the asset" over which the trust was created. In the present case, the asset over which the trust was created was Helen's half interest in the Property. 63 It is sufficient to say in relation to the absolute entitlement aspect that cll 34.12(b) and (c) are fatal to the applicants' cases. Those provisions were set out at [37] above. As mentioned, I do not agree with counsel for the applicants that the word "may" in cl 34.12(b) means "must". 64 There is no ground for saying that once Helen's Fund was established, Helen was absolutely entitled as against the Trustees to the half interest in the Property that she had owned prior to its establishment


case_title: Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625


case_title: Tomlinson (Inspector of Taxes) v Glyns Executor & Trustees Co [1969] 1 All ER 700


case_title: Tomlinson (Inspector of Taxes) v Glyns Executor & Trustees Co [1970] 1 All ER 381


case_text: Assuming for the moment that alteration of the Birth Register is a "service", s 22(1) on its face would clearly apply to the Registrar's refusal in this case since it expressly refers to discrimination on the grounds of marital status (s 22(2) provides that the section binds the Crown in right of a State). However, the operation of s 22(1) is limited by s 9. Section 9(4) provides that the prescribed provisions of Pt II (which include s 22) "have effect as provided by ... the following provisions of this section and not otherwise." The following provisions of s 9 include subsection (10) which refers to "the Convention", earlier identified in s 4 as the " Convention on the Elimination of All Forms of Discrimination Against Women ". Section 9(10) provides: "If the Convention is in force in relation to Australia [which is in fact the case] the prescribed provisions of Pt II [i.e. including s 22] ... have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention." The purpose of s 9 is to ensure that the prescribed provisions have effect in relation to matters falling within the scope of the legislative powers of the Commonwealth: South Pacific Hotels Pty Ltd v Trainor [2005] FCAFC 130 ; (2005) 144 FCR 402 at [19] . Other subsections of s 9 will give effect to prescribed provisions such as s 22 in particular circumstances coming within Commonwealth power, for example when there is discrimination by a trading or financial corporation on the ground of a person's marital status: s 9(11). 16 The issues raised by the present application therefore are: (i) Whether, having regard to s 9(4) and (10) of the Sex Discrimination Act , s 22 of the Act applies at all to the Registrar's conduct; and (ii) If it does, whether the Registrar's conduct constituted refusing to provide a service.


case_text: Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges: cf Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]. The Convention, being an international instrument, does not apply of its own force as part of Australian domestic law enforceable in Australian courts: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29, cited in Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239. The terms of the Convention do not directly prohibit or mandate conduct by individuals. By the Convention States Parties undertake to take measures, including legislative measures, which will help to eliminate discrimination against women. For example, by Article 2(b) "States Parties ... undertake: (a) ... (b) To adopt legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women."


case_title: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29


case_text: Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges: cf Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]. The Convention, being an international instrument, does not apply of its own force as part of Australian domestic law enforceable in Australian courts: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29, cited in Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239. The terms of the Convention do not directly prohibit or mandate conduct by individuals. By the Convention States Parties undertake to take measures, including legislative measures, which will help to eliminate discrimination against women. For example, by Article 2(b) "States Parties ... undertake: (a) ... (b) To adopt legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women." 36 That the definition does not extend to discrimination against all persons, male or female, simply on the ground of marital status, and is confined to discrimination against women, is confirmed by an example of the construction given by the international community (as to the admissibility of such material see Queensland v The Commonwealth , above, at 240). The UN Committee on the Elimination of Discrimination against Women on 31 July 1995 issued, in the course of its third periodic reports of States Parties to the Convention, the report of the United Kingdom Government. An annexure is a document entitled "Commentary on UK Reservations and Declarations, Statement entered by the United Kingdom on 7 April 1986". At page 126, under the heading "Article 1" there is quoted an earlier reservation of the UK which was in these terms: " With reference to the provisions of the Sex Discrimination Act 1975 and other applicable legislation, the United Kingdom's acceptance of Article 1 is subject to the reservation that the phrase "irrespective of their marital status" shall not be taken to render discriminatory any difference of treatment accorded to single persons as against married persons, so long as there is equality of treatment as between married men and married women and as between single men and single women. " It is then said: " This statement clarifies the UK's understanding of this Article. The UK Government still believes that it is an accurate statement of the Article's meaning. However, the Government accepts that there is no need for this still to be explicitly stated. On this basis the UK Government wishes to withdraw the statement. " 37 Article 2 provides (emphasis added): " States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. " Read together with the Preamble and the definition of " discrimination against women ", the obligations undertaken in Article 2 are clearly confined to acting (and refraining from acting) in relation to disadvantage suffered by women as compared with men. 38 Article 3 requires States Parties to take all appropriate measures, including legislation, in all fields, in particular in the political, social, economic and cultural fields, to ensure the full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms " on a basis of equality with men ".


case_text: The present case is not concerned with the Constitutional validity of s 22. The question is not whether Parliament has made a legislative judgment that a treaty obligation exists, in which case it is enough that " the legislative judgment could reasonably be made " ( Richardson v Forestry Commission [1988] HCA 10 ; (1988) 164 CLR 261 at 295-296). Rather, as Ms Mortimer SC for the Registrar submitted, Parliament has made the legislative judgment. It is expressed in ss 9(4) and (10), and s 22. The Court must construe the language of those provisions. There must be an examination of the Convention to ascertain to what Australia has undertaken to give effect by way of legislation. 20 At the outset the Preamble notes that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person " and in the equal rights of men and women ". It also notes that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination, that all human beings are born free and equal, and that everyone is entitled to all the rights and freedoms set forth in the Declaration, " without discrimination of any kind, including distinction based on sex ". 21 The Preamble then notes that States Parties to the International Covenants on Human Rights have the obligation to ensure " the equal right of men and women " to enjoy all economic, social, cultural, civil and political rights.


case_outcome: distinguished

case_text: Mr Lenehan on behalf of the Sex Discrimination Commissioner (Cth), who was given leave to appear as amicus curiae , supported the applicant's arguments. He also advanced an alternative argument. He submitted that even if marital status discrimination is not covered by Article 1 of the Convention, the application of s 22(1) of the Sex Discrimination Act to marital status discrimination is within the limits of s 51(xxix) of the Constitution (the external affairs power) and thus s 9(10) of the Act. He argued that the proscription of marital status discrimination against women will prevent the perpetuation of negative stereotypes about women and can therefore be seen as a means of " nipping in the bud" conduct which may grow into or foster " discrimination against women " within the meaning of Article 1. He referred to Article 5 ([40] above) and cited the decision of a Full Court of this Court in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515. 55 In Toben the appellant had been found by a determination of the Human Rights and Equal Opportunity Commission to have engaged in racial vilification contrary to s 18C of the Racial Discrimination Act 1975 (Cth). He contended that provision was invalid because the source of the s 51(xxix) external affairs power relied on, the International Convention on the Elimination of all Forms of Racial Discrimination , was concerned with the dissemination of ideas based on racial superiority or hatred whereas s 18C was intended only to proscribe acts which could be characterised as expressions of racial hatred. In other words, as I understand the argument, the Act did not give effect to the relevant Convention because it did not go far enough, it did not fully implement the Convention. 56 Carr J (with whom Kiefel J agreed) at [18] accepted that the Act did not fully implement Article 4 of the Convention because provisions in the Bill which created criminal offences in respect of racial hatred had been rejected by Parliament. However, his Honour at [20] said that it was clearly consistent with the provisions of the Convention that a State Party "should legislate to 'nip in the bud' the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination. ... it is for the legislature to choose the means by which it carries into or gives effect to a treaty ..." 57 As already mentioned, the present case is not concerned with the Constitutional validity of s 22. In any event, for the reasons given above, the Convention with which this case is concerned addresses discrimination against women, in the sense defined in Article 1, including discrimination which treats women less favourably than men who have the same marital status. But s 22, which applies to discrimination against men or women, married or unmarried, on the ground of marital status, is not, so to speak, a step along the way to some greater goal concerned with discrimination against women only. In so far as s 22 is concerned with stereotypes, it is the stereotype that might arise from a person being married, or unmarried, irrespective of sex. 58 In Toben the nature of the discrimination (racial) was the subject of both the Convention and Act the point was that the prohibition in the latter only extended to less severe forms of discriminatory conduct than the former. In the present case, discrimination on the ground of marital status per se is not some less severe form of discrimination against women. The "nip in the bud" analysis does not apply. 59 Section 9(10) speaks of "giv(ing) effect to the Convention" . A major element, albeit not the only one, of the Convention is the obligation undertaken by States Parties to legislate in a number of areas to proscribe discrimination against women. 60 Section 22 being legislation, and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia's discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women treating them less favourably than men because they are married. The action of the Registrar in the present case had nothing to do with the applicant's being a woman. Had the applicant been a man, the result of the application would have been the same. 61 Issue (i) must be resolved in the negative. It is not strictly necessary therefore to consider the second issue, but since the matter was fully argued I shall proceed to do so. 62 Ms McLeod submitted that the Registrar contravened s 22 by refusing to consider the application " on its merits ". The Registrar should have gone beyond a " blanket refusal ". The decision involved an "analysis of the factual content, the supporting material, the weighing of relevant discretionary factors and so on ". When it was pointed that this argument did not fit the agreed question, Ms McLeod sought the amendment which appears in [8] above.


case_title: IW v City of Perth (1997 [1997] HCA 30 ; 191 CLR 1

case_text: Both arguments seem to me to introduce an unnecessary degree of subtlety into a simple process. The arguments apparently proceeded from a perceived need to accord with what some members of the High Court said in IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1. But that case dealt with a town planning decision, an administrative decision of a very different nature. 65 "Service" involves an "act of helpful activity" or "the supplying of any ... activities ... required or demanded" (Macquarie Dictionary) or "the action of serving, helping, or benefiting, conduct tending to the welfare or advantage of another" (Shorter Oxford Dictionary). Altering the Birth Register was an activity. The applicant requested the Registrar to perform that activity. The carrying out of that activity would have conferred a benefit on the applicant. The Registrar, because of the terms of the BDM Act, declined the request to carry out that activity. This was the refusal of a service. 66 An activity carried out by a government official can none the less be one which confers a benefit on an individual. Much of governmental activity today involves the conferring of benefits on individuals. The BDM Act itself recognises this. For example the Registrar may enter into an arrangement for the provision of "additional services" (s 51) and the Governor in Council may make regulation prescribing fees with respect to searches etc and "other services provided by the Registrar" (s 59(1)(a)(iv)).


case_title: Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 ; (2001) 179 ALR 406

case_text: while it is certainly the case that the Court may be receptive to an application for non-party costs against a third party whose conduct has promoted the litigation ( Arundel [2001] HCA 26 ; [2001] 179 ALR 406 at 414) or can be characterised as having been that of wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatsoever ( Murphy v Young & Co's Brewery [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1601, Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414), there is no evidence of such intermeddling by Mrs Tracy in this case. So, for example, I infer that the regular attendance by Mrs Tracy at the trial was, not unreasonably, to support the second applicant, because the outcome of the trial was important to the second applicant. Further, the comment by Counsel for the applicants during the hearing that he would discuss the issue of an adjournment with "Mr and Mrs Tracy" in my view is not suggestive of meddling by Mrs Tracy in the applicants' case or an active part played by Mrs Tracy in the proceedings. Rather, as submitted by the applicants the comment merely recognised that Mrs Tracy would be present with the second applicant during the discussions, which was both unexceptional and understandable in the circumstances. The first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.


case_outcome: followed

case_title: Bischof v Adams [1992] 2 VR 198

case_text: first and second respondents have made much of their claims concerning an alleged asset protection strategy of Mr and Mrs Tracy, comprising shifting of assets from the second applicant to Mrs Tracy, and security being given to Mrs Tracy. The first and second respondents have pointed to the alleged potential resultant unfairness to the first and second respondents in relation to their ability to recover costs. As matters stand, however, such claims are speculative. As a matter of legal principle such allegations concerning shifting assets would be of much more relevance in the context of claims, for example, pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) which deal specifically with improper transfers of property and asset protection by persons who subsequently become bankrupt. Obviously however those provisions are not the subject of these proceedings and consideration of principles associated with those provisions have no place in this judgment. While such claims may be relevant in considering the justice of the case, on balance I do not consider that any private financial arrangements of Mr and Mrs Tracy, the reasons for which must be the subject of pure speculation at this stage and upon which I express no opinion, are of particular weight in the context of this notice of motion, viewed in light of the circumstances as a whole and the factors I have already described. Mrs Tracy was not, in my view "a real party" to the litigation in very important and critical respects (contrast Arundel [2001] HCA 26 ; (2001) 179 ALR 406 at 414). While Mrs Tracy may have benefited financially from the success of the applicants as I have already noted, and as has been held in numerous cases (for example Bischof [1992] 2 VR 198 , Vestris (1998) 72 SASR 449 , Probiotec [2008] FCAFC 5 ; (2008) 166 FCR 30) the mere fact that a person may benefit, financially or otherwise, from litigation will not, without more, suffice to justify an award of costs.


case_text: these submissions, I do not accept that the power of the Court to make orders as to non-party costs in these proceedings has been exhausted simply because costs orders have already been made and entered against the applicants. This exact issue was decisively determined by the Full Court in Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 , wherein the Court considered s 4 and s 43 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). So far as relevant, s 4 defines "proceeding" as meaning: ...in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding and also includes an appeal. Further, so far as relevant s 43(1) provides: the Court or a Judge has jurisdiction to award costs in all proceedings before the Court... In Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 the respondent to those proceedings obtained judgment against the applicant including an order for costs, which judgment was entered. The applicant subsequently went into liquidation and the respondent sought a supplemental costs order against the applicant's solicitors which would have had the effect of making them liable for those costs. The solicitors submitted that, once the proceedings had been concluded by judgment being entered and by an order for costs being made inter partes , there was no jurisdiction thereafter for the Court to reopen the case. The solicitors also submitted that the jurisdiction contained in s 43 of the Federal Court Act to "award costs in all proceedings" was spent once there was no longer a "proceeding" before the Court. Applying Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 , the Full Court held that s 43 conferred jurisdiction to award costs against non-parties to a proceeding (at 229). In relation to the submission of the solicitors concerning whether there was still a "proceeding" before the Court, the Full Court observed that the submission incorrectly confined the meaning of the word "proceeding" to the original action, and was inconsistent with the definition of "proceeding" in s 4 of the Federal Court Act (at 230). The Court continued: What s43 requires is that the jurisdiction to order costs be one limited to costs relating to a proceeding. In other words, there is no jurisdiction to order costs at large. There has to be or have been, within the Court's jurisdiction, instituted a proceeding. It is irrelevant, subject to the application of common law principles discussed later, that judgment has been given and entered . (emphasis added) I note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204. In this case the applicants have submitted that the orders sought by the first and second respondents are in substitution for the costs orders already made rather than supplemental. That is clearly not the case. It is irrelevant that the first and second respondents have sought an award of costs against Mrs Tracy on an indemnity basis, and therefore on different terms from those already obtained against the applicants. As was the case in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 (where the costs were originally ordered on a standard basis but the Court subsequently ordered non-party costs on an indemnity basis), the orders sought pursuant to the notice of motion currently before the Court do not in any way seek to vary or alter the costs orders already made against the applicants. Were the first and second respondents to be successful in relation to this notice of motion, the new orders would properly be characterised as supplemental orders. Accordingly, I find that the submissions of the applicants on this issue are not substantiated, and that the jurisdiction of the Court to award non-party costs, (be they on an indemnity basis or otherwise) pursuant to s 43 of the Federal Court Act was not spent when previous costs orders were entered. LIABILITY OF MRS TRACY FOR NON-PARTY COSTS Submissions of the parties I turn now to the key issue in this case, namely whether Mrs Tracy is liable for non-party costs in respect of the costs of the first and second respondents in the primary proceedings. Helpful and detailed submissions as to the liability of Mrs Tracy for costs in the primary proceedings were filed by both parties in this case, and made orally by Counsel at the hearing. Submissions of the first and second respondents may be summarised as follows: In response, the applicants submitted in summary: There is no suggestion that the purpose of the advance by Mrs Tracy of $1.15 million to the first and third applicants in March 2005 to enable the first applicant to purchase land and business owned by the first respondent had any connection with these proceedings. There is no evidence that the list of assets provided to the National Australia Bank in support of the loan application including some of Mrs Tracy's assets was provided with Mrs Tracy's consent, knowledge or authority, as the list was executed by Mr Tracy alone. In any event this list is irrelevant as no security was provided by Mrs Tracy to the National Australia Bank in support of the loan application. In relation to Mrs Tracy's status as mortgagee, chargee and lender, it should be noted that both the National Australia Bank and, indeed, the first respondent, also had securities over the assets of the first applicant. Like the National Australia Bank and the first respondent Mrs Tracy's rights as mortgagee/chargee accrued to her prior to the commencement of proceedings and none of the funds advanced were used to fund the litigation but rather were used to purchase the orchards. Accordingly, the securities over the orchards gave Mrs Tracy a direct financial interest in the assets of the first applicant, not the proceedings. Under the Sunstate Orchards Unit Trust Deed, Mrs Tracy is within the class of discretionary beneficiaries contained in Sch 2 Pt 2 of the Deed. Her position as a contingent beneficiary under the Sunstate Unit Trust gave her no direct interest in any of the Trust assets or income of the Trust which might have been received had the litigation been successful. Any benefits Mrs Tracy received if the litigation brought by the applicants had been successful would accrue only by virtue of the securities, and not by virtue of any action taken by her concerning the proceedings. There is no real, direct and material connection between the granting of the securities to Mrs Tracy and the proceedings. The fact that the first and second respondents have already obtained orders for security for costs militate against the exercise of the discretion to make an order for non-party costs. Although the proceedings were initiated by Mrs Tracy as director of Janling Pty Ltd, the significance of the provision of instructions can only relate to the period during which the proceedings were maintained by Janling Pty Ltd. The first and second respondents have already had the benefit of a costs order against Janling Pty Ltd for the period prior to 16 February 2006 when the applicants were substituted for Janling Pty Ltd in the primary proceedings. The applicants conceded that Mrs Tracy attended Court with the second applicant during the trial. A discussion between senior Counsel for the applicants, the second applicant and Mrs Tracy (as the second applicant's wife) was unexceptional and understandable. Notwithstanding the Deeds of Assignment of the causes of action from the applicants to Mrs Tracy and then from Mrs Tracy to Janling Pty Ltd, from 16 February 2006 Janling Pty Ltd had no involvement in the proceedings and Mrs Tracy had no lawful capacity to provide any instructions for the conduct of the proceedings. The matter was resolved by consent orders made on 15 February 2006. Relevant principles Although as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following:


case_title: Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757


case_text: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 , delivered 5 September 2008, the background facts to the proceedings are described in detail. In that judgment I ordered that the amended application filed by the applicants on 16 February 2006 be dismissed, and that the cross-claim filed by the first and second respondents on 5 June 2007 be allowed. Subsequently in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 , delivered 17 October 2008, I ordered that, with the exception of a number of costs incurred by the applicants in relation to interlocutory applications, the applicants pay the costs of the first and second respondents, such costs to be taxed if not otherwise agreed. In so ordering I rejected the claim of the first and second respondents that their costs be paid by the applicants on an indemnity basis. It became clear during the primary proceedings that, when considering the history of events culminating in the proceedings and all matters concerning the applicants, the second applicant played a pivotal role. All decisions, all discussions, and all negotiations were made, had and conducted by the second applicant on his own behalf and on behalf of the first and third applicants. The position is clouded by the assignment of causes of action, an issue to which I will return shortly, however prima facie the actual authority to make all decisions with respect to the conduct of litigation in the primary proceedings remained with the second applicant because of his historical role and his position as sole director and shareholder of the first applicant, and the sole director of the third applicant. Indeed as I found in the primary judgment, the second applicant was, at all material times, the directing mind and will of the first and third applicants ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [9] ). In light of these findings, was the role of Mrs Tracy such that an award of costs with respect to these proceedings should be made against her?


case_text: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 , delivered 5 September 2008, the background facts to the proceedings are described in detail. In that judgment I ordered that the amended application filed by the applicants on 16 February 2006 be dismissed, and that the cross-claim filed by the first and second respondents on 5 June 2007 be allowed. Subsequently in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 , delivered 17 October 2008, I ordered that, with the exception of a number of costs incurred by the applicants in relation to interlocutory applications, the applicants pay the costs of the first and second respondents, such costs to be taxed if not otherwise agreed. In so ordering I rejected the claim of the first and second respondents that their costs be paid by the applicants on an indemnity basis. In conclusion, I note that even had I been prepared to exercise my discretion so as to order non-party costs against Mrs Tracy, I would not have been prepared to order costs against her on an indemnity basis. In Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 8) [2008] FCA 1556 I ordered the applicants to pay the costs of the first and second respondents on a standard basis, for the reasons I explained in that judgment. I need not repeat those reasons here. No satisfactory reasons have been provided by the first and second respondents in relation to Mrs Tracy to distinguish her circumstances from those of the applicants, so as to warrant a departure from the usual approach of the Court to order costs payable on a party-party basis. The appropriate order in this case is that the notice of motion be dismissed. I will now hear submissions as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 May 2009 Counsel for the First, Second and Third Applicants: Mr CD Coulsen Solicitor for the First, Second and Third Applicants: Lynch Morgan Counsel for the First, Second and Third Respondents: Mr J Bell QC and Mr PP McQuade Solicitor for the First, Second and Third Respondents: McCullough Robertson Date of Hearing: 2 February 2009 Date of Judgment: 15 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/498.html


case_title: Condliffe v Hislop [1996] 1 WLR 753

case_text: and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39.


case_text: circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).


case_text: note that the decision in Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 is consistent with decisions in other jurisdictions, including Dymocks Franchise Systems (NSW) v Todd [2004] UKPC 39 ; [2004] 1 WLR 2807 , NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and UTSA Pty Ltd (In Liquidation) v Ultratune Australia Pty Ltd [1998] VSC 13 ; [1999] 1 VR 204.


case_text: as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following: Significantly, and by analogy with the principles of maintenance and champerty, the courts have also recognised that not only may legitimate financial support in litigation be provided by family members, but that in the event of the failure of the relevant litigation costs will not as a general proposition be awarded against those supporting family members. The rationale for such recognition appears to be that such social or family ties justify the support of the litigation (cf for example Neville v London Express Newspaper Ltd [1919] AC 368). This principle was discussed by the Full Court in Gore (2002) 119 FCR 429, where their Honours in turn referred to the decision of the Court of Appeal in Condliffe v Hislop [1996] 1 WLR 753 and observations of Longmore J in McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366 at 373. That is not to say, of course, that non-party costs will not be awarded against a spouse or other family member should the circumstances warrant for example Thistleton v Hendricks (1992) 32 Con LR 123 , Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39. It cannot be correct that the circumstances described in Knight [1992] HCA 28 ; (1992) 174 CLR 178 constitute necessary pre-conditions to the exercise of the Court's discretion to award non-party costs pursuant to s 43 as submitted by the applicants. While obviously the comments of Mason CJ and Deane J would be an appropriate guide to the exercise of discretion in an appropriate case, they were clearly obiter (see observations of the Full Court in Yates v Boland [2000] FCA 1895). As the exercise of the discretion in s 43 is unfettered, other than the requirement that it be exercised judicially ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 at [192] ; Gore (2002) 119 FCR 429 at 447-448), it follows that the comments in Knight [1992] HCA 28 ; (1992) 174 CLR 178 could not prescribe prerequisites to the exercise of discretion to award costs against a non-party. Inevitably, as the Full Court pointed out in Gore (2002) 119 FCR 429 at 437: ...there is no reason to suppose that the remarks of the members of the High Court in Knight have closed the door to the categories of third parties who may be made liable for the costs of litigation nor that the circumstances that were identified by their Honours were exhaustive. ... and later ...the learned trial judge erred when he regarded the passage in Knight as laying down three principles, each of which must be present before a stranger to the litigation could be made liable for costs. (at 451) First, Mrs Tracy was never a director or shareholder of either the first or third applicants. In light of the dominant role played by the second applicant in the affairs of all applicants and the clear professional and financial stake of the second applicant in the businesses of the first and third applicants particularly as director and shareholder, it is clear that the failure of the proceedings would have had a much greater impact on the fortunes of the second applicant than on those of Mrs Tracy. I consider that it is likely that any financial support provided by Mrs Tracy to the applicants' case was motivated by Mrs Tracy's natural affection for the second applicant (cf Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609) rather than any financial interest she may have had in the outcome of the proceedings. In my view this is an important distinction between the supportive role played by Mrs Tracy of the applicants, and the motivation of such entities as the third party in Gore (2002) 119 FCR 429.


case_text: circumstances where financial support for litigation is provided by a spouse the proper starting point may be to regard any such support as motivated by the spouse's natural affection for the litigant, and therefore not such a circumstance where non-party costs should be awarded in the absence of exceptional circumstances (cf Cooper v Maxwell [1992] CA Transcript 273, Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at [1603]-[1604], Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609). Knight First, Mrs Tracy was never a director or shareholder of either the first or third applicants. In light of the dominant role played by the second applicant in the affairs of all applicants and the clear professional and financial stake of the second applicant in the businesses of the first and third applicants particularly as director and shareholder, it is clear that the failure of the proceedings would have had a much greater impact on the fortunes of the second applicant than on those of Mrs Tracy. I consider that it is likely that any financial support provided by Mrs Tracy to the applicants' case was motivated by Mrs Tracy's natural affection for the second applicant (cf Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 609) rather than any financial interest she may have had in the outcome of the proceedings. In my view this is an important distinction between the supportive role played by Mrs Tracy of the applicants, and the motivation of such entities as the third party in Gore (2002) 119 FCR 429. Fourth, while I note that Mrs Tracy assisted in providing security for costs which the applicants were ordered to pay, I consider that this is explainable by the natural inclination of a wife to support her husband in litigation to which he is a party and does not constitute an active part played by Mrs Tracy in the conduct of the litigation. As has been observed in numerous cases, funding alone will not justify an order where an otherwise disinterested relative has, out of natural affection, funded costs of a claim (Dillon LJ in Cooper v Maxwell [1992] CA Transcript 273 (Stuart-Smith LJ and Mann LJ agreeing); Phillips LJ in Murphy [1996] EWCA Civ 1000 ; [1997] 1 WLR 1591 at 1603-1604, Jackson v Thakrar [2007] EWHC 626 ; [2008] 1 All ER 601 at 607-608).


case_text: as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following:


case_text: in relation to the factor articulated by Lander J in Vestris v Cashman (1998) 72 SASR 449 concerning whether Mrs Tracy could have been joined as a party earlier in the proceedings I note that, in fact, the first and second respondents had earlier claimed that Mrs Tracy's company Janling Pty Ltd had no place in these proceedings. It seems somewhat odd to now claim that Mrs Tracy should bear the costs of the unsuccessful claims of the applicants.


case_text: Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 the respondent to those proceedings obtained judgment against the applicant including an order for costs, which judgment was entered. The applicant subsequently went into liquidation and the respondent sought a supplemental costs order against the applicant's solicitors which would have had the effect of making them liable for those costs. The solicitors submitted that, once the proceedings had been concluded by judgment being entered and by an order for costs being made inter partes , there was no jurisdiction thereafter for the Court to reopen the case. The solicitors also submitted that the jurisdiction contained in s 43 of the Federal Court Act to "award costs in all proceedings" was spent once there was no longer a "proceeding" before the Court. Applying Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 , the Full Court held that s 43 conferred jurisdiction to award costs against non-parties to a proceeding (at 229). In relation to the submission of the solicitors concerning whether there was still a "proceeding" before the Court, the Full Court observed that the submission incorrectly confined the meaning of the word "proceeding" to the original action, and was inconsistent with the definition of "proceeding" in s 4 of the Federal Court Act (at 230). The Court continued: What s43 requires is that the jurisdiction to order costs be one limited to costs relating to a proceeding. In other words, there is no jurisdiction to order costs at large. There has to be or have been, within the Court's jurisdiction, instituted a proceeding. It is irrelevant, subject to the application of common law principles discussed later, that judgment has been given and entered . (emphasis added) Although as a general rule costs are not awarded against a stranger to litigation, as I have already indicated it is well-settled that the Court has a discretion pursuant to s 43 of the Federal Court Act to order costs against a non-party in appropriate circumstances ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 , Caboolture Park [1993] FCA 471 ; (1993) 45 FCR 224 , Gore v Justice Corp Pty Ltd (2002) 119 FCR 429, Kebaro Pty Ltd v Saunders [2003] FCAFC 5 , Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595). The exercise of such discretion is approached with caution indeed it has been described as "rare and exceptional" ( Vestris v Cashman (1998) 72 SASR 449 at 467, Kebaro [2003] FCAFC 5 at [103] ) and depends on the circumstances of each case as it is a "fact-specific jurisdiction" ( Kebaro [2003] FCAFC 5 at [69] ). Principles guiding the approach of the Court to the exercise of the include the following: In this case the applicants submitted that the circumstances articulated by Mason CJ and Deane J in Knight [1992] HCA 28 ; (1992) 174 CLR 178 must be present before the Court should exercise its discretion to make a costs order against a non-party, namely as follows at 192: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made. It cannot be correct that the circumstances described in Knight [1992] HCA 28 ; (1992) 174 CLR 178 constitute necessary pre-conditions to the exercise of the Court's discretion to award non-party costs pursuant to s 43 as submitted by the applicants. While obviously the comments of Mason CJ and Deane J would be an appropriate guide to the exercise of discretion in an appropriate case, they were clearly obiter (see observations of the Full Court in Yates v Boland [2000] FCA 1895). As the exercise of the discretion in s 43 is unfettered, other than the requirement that it be exercised judicially ( Knight [1992] HCA 28 ; (1992) 174 CLR 178 at [192] ; Gore (2002) 119 FCR 429 at 447-448), it follows that the comments in Knight [1992] HCA 28 ; (1992) 174 CLR 178 could not prescribe prerequisites to the exercise of discretion to award costs against a non-party. Inevitably, as the Full Court pointed out in Gore (2002) 119 FCR 429 at 437: ...there is no reason to suppose that the remarks of the members of the High Court in Knight have closed the door to the categories of third parties who may be made liable for the costs of litigation nor that the circumstances that were identified by their Honours were exhaustive. ... and later ...the learned trial judge erred when he regarded the passage in Knight as laying down three principles, each of which must be present before a stranger to the litigation could be made liable for costs. (at 451) I consider that it is appropriate to consider any potential liability of Mrs Tracy in terms of principles arising from cases where the courts have considered the exercise of the discretion to award costs against a non-party. The principles articulated in Knight [1992] HCA 28 ; (1992) 174 CLR 178 are relevant as guiding factors only, in appropriate circumstances. Consideration It is common ground that the causes of action determined in the primary proceedings were purportedly assigned by the applicants to Mrs Tracy on 17 June 2005 and then from Mrs Tracy to Janling Pty Ltd on 4 July 2005. (It is not in contention that at all material times the sole shareholder of Janling Pty Ltd was a corporation the sole shareholder of which in turn was Mrs Tracy, and that Mrs Tracy herself was the sole director of Janling Pty Ltd.) I say "purportedly" because the first and second respondent filed a notice of motion on 8 December 2005 seeking orders that the proceedings be dismissed and/or struck out on the basis that, inter alia , the causes of action the subject of the primary proceedings were not assignable (TS 14 December 2005 p 2 ll 35-43). Whether the assignment of the causes of action was valid ceased to be contentious when the parties agreed, and the Court ordered by consent on 15 February 2006, that the strike out motion of the first and second respondents be dismissed, that Janling Pty Ltd be removed as the applicant to the primary proceedings, and that the first, second and third applicants be substituted as applicants. However notwithstanding the orders of 15 February 2006 there is no evidence that the benefit of the relevant causes of action was reassigned by Janling Pty Ltd to the applicants. Accordingly any purported assignment of the causes of action, to the extent that the assignment took effect, remained with Janling Pty Ltd. It followed that presumably financial benefits of any success of the applicants in the proceedings would flow to Janling Pty Ltd, and thence to Mrs Tracy. The fact that the applicants were unsuccessful with respect to their claims against the first and second respondents (other than with respect to a number of reserved costs) is irrelevant in the context of this notice of motion. However in my view, notwithstanding potential financial benefits accruing to Mrs Tracy from the proceedings, the circumstances of this case do not warrant the exercise of the Court's discretion to award costs against Mrs Tracy pursuant to s 43 of the Federal Court Act. As I have already observed, the mere fact that a person may benefit from litigation will not, without more, suffice to justify an award of costs. I form this view for the following reasons.


case_title: Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 ; (2008) 170 FCR 595


case_title: Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS GazR 39


case_title: McFarlane v EE Caledonia Ltd (No 2) [1995] 1 WLR 366