Question:
<citphrase id="cp0.0">cited from="[2007] FCA 581">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 581">pleadings</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 581">whether claims properly pleaded</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 581">further amended statement of claim previously struck out</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 581">leave granted to replead</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCA 581">respondent seeking to strike out second amended statement of claim</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCA 581">pleading embarrassing</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCA 581">motion successful  industrial law</citphrase>
<citphrase id="cp0.8">cited from="[2007] FCA 581">conduct by employer</citphrase>
<citphrase id="cp0.9">cited from="[2007] FCA 581">respondent's decision to provide jetstar with four qantas airbuses, but not permitting those aircraft to be crewed by its qantas employees</citphrase>
<citphrase id="cp0.10">cited from="[2007] FCA 581">applicant has failed to plead facts establishing a breach of s 298k workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp0.11">cited from="[2007] FCA 581">s 298k repealed on 27 march 2006 and superseded by s 792 of the amended act</citphrase>
<citphrase id="cp0.12">cited from="[2007] FCA 581">applicant has failed to plead a cause of action under s 792 of the amended act</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCAFC 53">workplace relations</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCAFC 53">costs in respect of an unsuccessful application for constitutional writ relief in relation to a decision of the full bench of the australian industrial relations commission</citphrase>
<citphrase id="cp3.0">cited from="[2006] FCA 745">workplace relations</citphrase>
<citphrase id="cp3.1">cited from="[2006] FCA 745">costs of notice of motion</citphrase>
<citphrase id="cp3.2">cited from="[2006] FCA 745">meaning of 'proceeding' under s 824 of workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp3.3">cited from="[2006] FCA 745">whether notice of motion instituted vexatiously or without reasonable cause</citphrase>
<citphrase id="cp3.4">cited from="[2006] FCA 745">whether notice of motion an unreasonable act or omission</citphrase>
<citphrase id="cp3.5">cited from="[2006] FCA 745">application for costs refused</citphrase>
<citphrase id="cp5.0">cited from="[1993] FCA 536">costs</citphrase>
<citphrase id="cp5.1">cited from="[1993] FCA 536">application that respondent's costs of certain issues be paid on indemnity basis</citphrase>
<citphrase id="cp5.2">cited from="[1993] FCA 536">discussion of applicable principles.</citphrase>
<citphrase id="cp6.0">cited from="[1992] HCA 20">statutes</citphrase>
<citphrase id="cp6.1">cited from="[1992] HCA 20">repeal</citphrase>
<citphrase id="cp6.2">cited from="[1992] HCA 20">transitional provisions</citphrase>
<citphrase id="cp6.3">cited from="[1992] HCA 20">proceedings instituted but not completed before repeal</citphrase>
<citphrase id="cp6.4">cited from="[1992] HCA 20">right accrued under repealed act</citphrase>
<citphrase id="cp6.5">cited from="[1992] HCA 20">application for redemption of weekly compensation payments made under an act</citphrase>
<citphrase id="cp6.6">cited from="[1992] HCA 20">act repealed before hearing</citphrase>
<citphrase id="cp6.7">cited from="[1992] HCA 20">whether right for application to be determined under repealed act</citphrase>
<citphrase id="cp6.8">cited from="[1992] HCA 20">compensation (commonwealth government employees) act 1971 (cth), s. 49</citphrase>
<citphrase id="cp6.9">cited from="[1992] HCA 20">commonwealth employees' rehabilitation and compensation act 1988 (cth), ss. 30 , 124 , 127 , 129</citphrase>
<citphrase id="cp6.10">cited from="[1992] HCA 20">acts interpretation act 1901 (cth), s. 8(c) , (e).</citphrase>
<citphrase id="cp7.0">cited from="[1989] FCA 166">industrial relations act 1988</citphrase>
<citphrase id="cp7.1">cited from="[1989] FCA 166">interpretation of award</citphrase>
<citphrase id="cp7.2">cited from="[1989] FCA 166">application for particulars of allegations of serious misconduct against university professor</citphrase>
<citphrase id="cp7.3">cited from="[1989] FCA 166">whether committee of inquiry denied natural justice to professor</citphrase>
<citphrase id="cp7.4">cited from="[1989] FCA 166">whether proceeding is properly characterised as a proceeding in a matter arising under the industrial relations act 1988 for purposes of s. 347</citphrase>
<citphrase id="cp7.5">cited from="[1989] FCA 166">whether proceeding instituted "without reasonable cause"</citphrase>
<citphrase id="cp7.6">cited from="[1989] FCA 166">whether university entitled to costs.</citphrase>
<citphrase id="cp8.0">cited from="[1971] HCA 4">landlord and tenant (n.s.w.)</citphrase>
<citphrase id="cp8.1">cited from="[1971] HCA 4">prescribed premises</citphrase>
<citphrase id="cp8.2">cited from="[1971] HCA 4">death of lessee</citphrase>
<citphrase id="cp8.3">cited from="[1971] HCA 4">statutory right of adult child residing with lessee to continue in possession</citphrase>
<citphrase id="cp8.4">cited from="[1971] HCA 4">amendment narrowing class of protected persons</citphrase>
<citphrase id="cp8.5">cited from="[1971] HCA 4">whether right to possession of adult child divested</citphrase>
<citphrase id="cp8.6">cited from="[1971] HCA 4">statute</citphrase>
<citphrase id="cp8.7">cited from="[1971] HCA 4">amendment</citphrase>
<citphrase id="cp8.8">cited from="[1971] HCA 4">whether repeal</citphrase>
<citphrase id="cp8.9">cited from="[1971] HCA 4">effect of general saving provisions in interpretation statute</citphrase>
<citphrase id="cp8.10">cited from="[1971] HCA 4">landlord and tenant (amendment) act, 1948 (n.s.w.), s. 83a (1) (b)*</citphrase>
<citphrase id="cp8.11">cited from="[1971] HCA 4">landlord and tenant act, 1968 (n.s.w.), s. 4 (h) (i)</citphrase>
<citphrase id="cp8.12">cited from="[1971] HCA 4">interpretation act of 1897, s. 8*.</citphrase>
<citphrase id="cp9.0">citing from="[2011] FMCA 357">industrial law</citphrase>
<citphrase id="cp9.1">citing from="[2011] FMCA 357">application under fair work act</citphrase>
<citphrase id="cp9.2">citing from="[2011] FMCA 357">claim alleging dismissal in contravention of general protection provisions</citphrase>
<citphrase id="cp9.3">citing from="[2011] FMCA 357">claim discontinued at interim hearing</citphrase>
<citphrase id="cp9.4">citing from="[2011] FMCA 357">claim against wrong party</citphrase>
<citphrase id="cp9.5">citing from="[2011] FMCA 357">application for costs against solicitor</citphrase>
<citphrase id="cp9.6">citing from="[2011] FMCA 357">unreasonable act or omission.</citphrase>
<citphrase id="cp10.0">citing from="[2011] FMCA 259">industrial law</citphrase>
<citphrase id="cp10.1">citing from="[2011] FMCA 259">application for costs</citphrase>
<citphrase id="cp10.2">citing from="[2011] FMCA 259">whether unreasonable act or omission</citphrase>
<citphrase id="cp10.3">citing from="[2011] FMCA 259">application dismissed.</citphrase>
<citphrase id="cp11.0">citing from="[2011] FMCA 79">industrial law</citphrase>
<citphrase id="cp11.1">citing from="[2011] FMCA 79">whether the restriction on award of costs under s.570 of the fair work act 2009 (cth) is applicable to costs in relation to an interlocutory application based on the accrued or associated jurisdiction of the court.</citphrase>
<citphrase id="cp12.0">citing from="[2010] FMCA 500">industrial law</citphrase>
<citphrase id="cp12.1">citing from="[2010] FMCA 500">costs</citphrase>
<citphrase id="cp12.2">citing from="[2010] FMCA 500">whether unreasonable act or omission</citphrase>
<citphrase id="cp12.3">citing from="[2010] FMCA 500">failure to discontinue upon issuance of conciliation certificate by australian industrial relations commission indicating no reasonable prospect of success</citphrase>
<citphrase id="cp12.4">citing from="[2010] FMCA 500">offer of compromise</citphrase>
<citphrase id="cp12.5">citing from="[2010] FMCA 500">further offer of compromise but under federal court rules</citphrase>
<citphrase id="cp12.6">citing from="[2010] FMCA 500">where offers not accepted</citphrase>
<citphrase id="cp12.7">citing from="[2010] FMCA 500">where damages awarded greater than offers not accepted.  industrial law</citphrase>
<citphrase id="cp12.8">citing from="[2010] FMCA 500">termination of employment</citphrase>
<citphrase id="cp12.9">citing from="[2010] FMCA 500">alleged unlawful termination by reason of race.  contract</citphrase>
<citphrase id="cp12.10">citing from="[2010] FMCA 500">unpaid employment entitlements</citphrase>
<citphrase id="cp12.11">citing from="[2010] FMCA 500">contractual terms.</citphrase>
<citphrase id="cp13.0">citing from="[2010] FMCA 378">industrial law</citphrase>
<citphrase id="cp13.1">citing from="[2010] FMCA 378">costs</citphrase>
<citphrase id="cp13.2">citing from="[2010] FMCA 378">where matter listed for hearing</citphrase>
<citphrase id="cp13.3">citing from="[2010] FMCA 378">where no notice of intended amended response and defence and institution of cross-claim prior to mediation</citphrase>
<citphrase id="cp13.4">citing from="[2010] FMCA 378">whether unreasonable act or omission.</citphrase>
<citphrase id="cp14.0">citing from="[2010] FMCAfam 38">child support</citphrase>
<citphrase id="cp14.1">citing from="[2010] FMCAfam 38">costs</citphrase>
<citphrase id="cp14.2">citing from="[2010] FMCAfam 38">whether making of a costs order is a matter affecting substantive rights or one of practice and procedure</citphrase>
<citphrase id="cp14.3">citing from="[2010] FMCAfam 38">whether an order for costs may be made retrospectively</citphrase>
<citphrase id="cp14.4">citing from="[2010] FMCAfam 38">whether an order for costs ought to be made</citphrase>
<citphrase id="cp14.5">citing from="[2010] FMCAfam 38">whether it would be a proper exercise of discretion to apply the current schedule of costs to costs incurred in the past</citphrase>
<citphrase id="cp14.6">citing from="[2010] FMCAfam 38">proper scale of costs to be applied on the facts of this matter.  child support (registration and collection) act 1988 , sub-s.116(2)</citphrase>
<citphrase id="cp15.0">citing from="[2009] FMCA 1071">industrial law</citphrase>
<citphrase id="cp15.1">citing from="[2009] FMCA 1071">costs in relation to proceedings under the workplace relations act 1996 (cth).</citphrase>
<citphrase id="cp16.0">citing from="[2009] FMCA 1044">industrial law</citphrase>
<citphrase id="cp16.1">citing from="[2009] FMCA 1044">small claims procedure</citphrase>
<citphrase id="cp16.2">citing from="[2009] FMCA 1044">objection to jurisdiction</citphrase>
<citphrase id="cp16.3">citing from="[2009] FMCA 1044">whether legislation has retrospective effect.  industrial law</citphrase>
<citphrase id="cp16.4">citing from="[2009] FMCA 1044">alleged unlawful termination</citphrase>
<citphrase id="cp16.5">citing from="[2009] FMCA 1044">where no application made</citphrase>
<citphrase id="cp16.6">citing from="[2009] FMCA 1044">where no election made</citphrase>
<citphrase id="cp16.7">citing from="[2009] FMCA 1044">jurisdiction where no certificate and no election.  costs</citphrase>
<citphrase id="cp16.8">citing from="[2009] FMCA 1044">whether proceedings instituted without reasonable cause</citphrase>
<citphrase id="cp16.9">citing from="[2009] FMCA 1044">whether unreasonable act or omission caused a party to incur costs.</citphrase>
<citphrase id="cp17.0">citing from="[2009] FMCA 1028">industrial law</citphrase>
<citphrase id="cp17.1">citing from="[2009] FMCA 1028">costs in relation to interlocutory application under the independent contractors act 2006 (cth).</citphrase>
<citphrase id="cp18.0">citing from="[2009] FMCA 1022">industrial law</citphrase>
<citphrase id="cp18.1">citing from="[2009] FMCA 1022">alleged unlawful termination</citphrase>
<citphrase id="cp18.2">citing from="[2009] FMCA 1022">unlawful termination court application</citphrase>
<citphrase id="cp18.3">citing from="[2009] FMCA 1022">requirement for s.777 certificate to be attached</citphrase>
<citphrase id="cp18.4">citing from="[2009] FMCA 1022">mandatory requirement</citphrase>
<citphrase id="cp18.5">citing from="[2009] FMCA 1022">jurisdiction where no s.777 certificate.  costs</citphrase>
<citphrase id="cp18.6">citing from="[2009] FMCA 1022">whether unreasonable act or omission caused a party to incur costs.</citphrase>
<citphrase id="cp20.0">citing from="[2009] FCA 571">costs</citphrase>
<citphrase id="cp20.1">citing from="[2009] FCA 571">multiple offers of compromise</citphrase>
<citphrase id="cp20.2">citing from="[2009] FCA 571">judgment in favour of party making offer</citphrase>
<citphrase id="cp20.3">citing from="[2009] FCA 571">whether party making offer entitled to costs on an indemnity basis</citphrase>
<citphrase id="cp20.4">citing from="[2009] FCA 571">whether offers made were unreasonable and imprudent</citphrase>
<citphrase id="cp20.5">citing from="[2009] FCA 571">held final offer made was reasonable and prudent</citphrase>
<citphrase id="cp20.6">citing from="[2009] FCA 571">held failure to accept final offer made was imprudent.</citphrase>
<citphrase id="cp21.0">citing from="[2009] FCA 339">industrial law</citphrase>
<citphrase id="cp21.1">citing from="[2009] FCA 339">termination of employment of the applicant</citphrase>
<citphrase id="cp21.2">citing from="[2009] FCA 339">whether applicant's employment was terminated for a prohibited reason</citphrase>
<citphrase id="cp21.3">citing from="[2009] FCA 339">whether applicant proposed to make a complaint to a body having the capacity under an industrial law to seek compliance with that law</citphrase>
<citphrase id="cp21.4">citing from="[2009] FCA 339">whether applicant proposed to participate in a proceeding under an industrial law</citphrase>
<citphrase id="cp21.5">citing from="[2009] FCA 339">whether respondent has discharged the reverse onus imposed in proceedings under s 807 of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp21.6">citing from="[2009] FCA 339">whether respondent has provided an explanation of the real reason for termination of applicant's employment    costs</citphrase>
<citphrase id="cp21.7">citing from="[2009] FCA 339">general restriction on costs under s 824 of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp21.8">citing from="[2009] FCA 339">whether some or all of the respondents in both proceedings are entitled to costs</citphrase>
<citphrase id="cp22.0">citing from="[2008] FMCA 1475">industrial law</citphrase>
<citphrase id="cp22.1">citing from="[2008] FMCA 1475">allegation of acts for prohibited reason.  costs</citphrase>
<citphrase id="cp22.2">citing from="[2008] FMCA 1475">whether unreasonable act or omission.</citphrase>
<citphrase id="cp23.0">citing from="[2008] FCAFC 143">costs</citphrase>
<citphrase id="cp23.1">citing from="[2008] FCAFC 143">proceedings in a matter arising under workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp23.2">citing from="[2008] FCAFC 143">whether respondent's conduct of proceedings involved an unreasonable act or omission.</citphrase>
<citphrase id="cp24.0">citing from="[2008] FMCA 875">industrial law</citphrase>
<citphrase id="cp24.1">citing from="[2008] FMCA 875">breach of disputes procedure</citphrase>
<citphrase id="cp24.2">citing from="[2008] FMCA 875">penalty proceedings</citphrase>
<citphrase id="cp24.3">citing from="[2008] FMCA 875">interpretation of workplace agreement.  practice  procedure</citphrase>
<citphrase id="cp24.4">citing from="[2008] FMCA 875">transfer proceedings to federal court.  workplace relations act 1996 (cth) ss.824  federal magistrates act 1999 (cth) ss.39(1) , 39 (2), 39 (3)(a)-(d) federal magistrates court rules 2001 (cth) r.8.02(4)(a)-(f)</citphrase>
<citphrase id="cp25.0">citing from="[2008] FMCA 336">industrial law</citphrase>
<citphrase id="cp25.1">citing from="[2008] FMCA 336">costs application</citphrase>
<citphrase id="cp25.2">citing from="[2008] FMCA 336">penalty proceedings</citphrase>
<citphrase id="cp25.3">citing from="[2008] FMCA 336">notice to admit</citphrase>
<citphrase id="cp25.4">citing from="[2008] FMCA 336">unreasonable act or omission</citphrase>
<citphrase id="cp25.5">citing from="[2008] FMCA 336">application dismissed.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 357" id="cs0">More recently there have also been decisions of the Federal Court in Australia and International Pilots Association v Qantas Airways Limited (No.3) [2007] FCA 879 ; (2007) 162 FCR 392 and also CFMEU v Clarke [2008] FCA FC 143. In Australian and International Pilots Association v Ltd (No.3) [2007] FCA 879 where Tracey J said: "36. In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania [1989] FCA 166 ; (1989) 28 IR 129 , Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138---9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category..."  More recently there have also been decisions of the Federal Court in Australia and International Pilots Association v Qantas Airways Limited (No.3) [2007] FCA 879 ; (2007) 162 FCR 392 and also CFMEU v Clarke [2008] FCA FC 143. In Australian and International Pilots Association v Ltd (No.3) [2007] FCA 879 where Tracey J said: "36. In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania [1989] FCA 166 ; (1989) 28 IR 129 , Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138---9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category..." </sentence>
<sentence from="[2011] FMCA 259" id="cs1">Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [33] and CFMEU v Clarke [2008] 170 FCR 574 at [28]. 11. Further it is submitted that, in light of the findings in paragraphs [32] --- [35] this was not a case of the Applicant pursuing a 'contentious but ultimately unsuccessful argument" ( Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [36] ). 12. By reason of the applicant refusal to withdraw the substantive application and the resisting of the Respondent's Application in a case, the Respondent incurred costs. 10. It is submitted that objectively, the conduct of the Applicant, constituted unreasonable acts or omissions in the circumstances of this case. Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [33] and CFMEU v Clarke [2008] 170 FCR 574 at [28]. 11. Further it is submitted that, in light of the findings in paragraphs [32] --- [35] this was not a case of the Applicant pursuing a 'contentious but ultimately unsuccessful argument" ( Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [36] ). In submissions both parties referred to the decision in Australian and International Pilots Association v Ltd (No.3) [2007] FCA 879 where Tracey J said: "36. In dealing with an application for costs under s 347(1) of the Act, in Standish v University of Tasmania [1989] FCA 166 ; (1989) 28 IR 129 , Lockhart J was called on to decide whether the proceeding had been instituted "without reasonable cause". His Honour drew a distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent: see at 138---9. This distinction may, in my view, assist in determining whether conduct is unreasonable for the purposes of s 824(2). The prosecution of any incompetent or hopeless case can be regarded as "an unreasonable act" within the meaning of s 824(2). Conversely, in my opinion, the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act. In my view the applicant's defence of its pleadings in the first strike-out application falls into the latter category..."  As was said by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 at [29] : "There is a distinction between a party who pursues arguments which are ultimately .....rejected by the Court and a party who commences a proceeding which his misconceived in the sense of being incompetent or unsupportable..." 10. The distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent may assist in determine whether an act is unreasonable. The pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 at [36] . 11. The Court cannot be satisfied that the relevant provisions of s570 have been made out and the Court should make no order for costs. Whilst the respondent referred to the decision in Bahonko v Sterjov [2008] FCAFC 30 what went on in this proceeding in no way approximates the conduct sanctioned in that matter. Indeed, in considering the submissions made on behalf of the respondent that the applicant caused the respondent to incur costs, there is some force in the submissions made on behalf of the applicant that: "9. In relation to any suggestion that Mr Cugera should not have pursued his application in the face of the Respondent's case that s.725 applied to prevent his application, Mr Cugera had a reasonable argument that he had withdrawn his VEOHRC application. As was said by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 at [29] : "There is a distinction between a party who pursues arguments which are ultimately...rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unstoppable..." 10. The distinction between the pursuit of an argument which does not succeed and the institution of a proceeding which is misconceived in the sense of being incompetent may assist in determining whether an act is unreasonable. The pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 at [36] . " </sentence>
<sentence from="[2011] FMCA 79" id="cs2">As Lucev FM pointed out in Rentuza at [26] --- [28] and Hughes at [19] --- [21]: For the purposes of s.570(2)(b) two criteria must be fulfilled. They are: a. that a party must have engaged in an unreasonable act or omission; and b. that the unreasonable act or omission must have caused another party to incur costs in connection with the proceeding (Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 ; 176 IR 245 at [28] per Tamberlin, Gyles and Gilmour JJ ( Clarke ). Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case (Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 ; 165 IR 464 at [32] per Tracey J ( Qantas (No 3) ); McAleer v University of Western Australia ( No 2 ) [2007] FCA 247 ; (2007) 161 IR 151. The exercise of the discretion in s 570(2)(b) is not necessarily engaged because: a) a party does not conduct litigation efficiently (Clarke at [29] per Tamberlin, Gyles and Gilmour JJ); b) a concession is made late (Clarke at [29] per Tamberlin, Gyles and Gilmour JJ); c) a party may have acted in a different or timelier fashion (Clarke at [30] per Tamberlin, Gyles and Gilmour JJ); d) a party has adopted a genuine but misguided approach (See, for example, the approach in Qantas (No 3) at [39] per Tracey J).  On the limited submissions of the parties it has not been established that s.570(1) of the Fair Work Act does not apply to claims in an interlocutory application based on the accrued or associated jurisdiction of the court where the substantive proceedings involve the exercise of jurisdiction under the Fair Work Act . These are proceedings in which an order is sought that one party to proceedings in which the court is exercising jurisdiction under the Fair Work Act pay costs incurred by another party. Were it not for the Fair Work Act jurisdiction, the Court would have no accrued or associated jurisdiction in relation to the matters the subject of the interlocutory application (see Philip Morris Incorporated and Another v Adam P. Brown Male Fashions Proprietary Limited (1981) 148 CLR 457 ; [1981] HCA 7). Such an approach to the costs of interlocutory applications is consistent with the approach taken to the predecessors to s.570(1) (see in particular Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2003) 129 FCR 271 ; [2003] FCAFC 115 at [11] and Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 ; [2007] FCA 879 at [14] ) and also with the wide approach to s.570(1) of the FWA taken in Hughes and Rentuza . It was not suggested that these decisions were clearly wrong and should not be followed. </sentence>
<sentence from="[2010] QDC 497" id="cs3">Australian and International Pilots Association v Qantas Airways Ltd [2007] FCA 879 --- cited. [62]
[160] Counsel for the defendant did not seek an order for costs against the plaintiffs in respect of any proceeding under the exception in subsection (1), or under subsection (2).</sentence>
<sentence from="[2010] FMCA 500" id="cs4">Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case. [18]  The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; [2007] FCA 879 ; (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) [2007] FCA 247 ; (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criteria are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.</sentence>
<sentence from="[2010] FMCA 378" id="cs5">The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; [2007] FCA 879 ; (2007) 162 FCR 392 and Siopis J in McAleer v University of Western Australia (No 2) [2007] FCA 247 ; (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criteria are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.</sentence>
<sentence from="[2010] FMCAfam 38" id="cs6">Following the decision of Australia and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 , as the rules do not specify that they do not operate retrospectively and as there is no other contrary intention expressed or clearly implied in the statute, they can operate retrospectively.  In Australia and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 , Tracey J said at paragraph 16: ...the common law rule that statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission of Victoria [1939] VR 284 at 297-8; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415.  In support of his submissions, Mr Gouliaditis relied on the cases of: Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 ; Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; 162 at 392; Maurici v Chief Commissioner of State Revenue (No 8) [2007] NSWLEC 37 ; Sykes v Queensland Gas Co  Anor [2009] QCA 163 ; and Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413. </sentence>
<sentence from="[2009] FMCA 1071" id="cs7">The question of whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case (see Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 ; [2007] FCA 879). However, as stated in CFMEU v Clarke , the exercise of the discretion to award costs on this basis is not necessarily engaged because a party does not conduct litigation efficiently, may have acted in a different or more timely fashion, made a late concession, or adopted a genuine but misguided approach. </sentence>
<sentence from="[2009] FMCA 1044" id="cs8">Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case. [18] </sentence>
<sentence from="[2009] NSWIRComm 178" id="cs9">It is necessary however to look at the state of the evidence at the time. Further, as indicated in Australian and International Pilots Association v. Qantas Airways Limited (No. 3) [2007] FCA 879 ; (2007) 162 FCR 392 ; 165 IR 46 whilst the actions may well have been unsuccessful costs do not arise unless the case is hopeless. The weakness of the Respondent's case only became apparent upon the filing of the Respondent's evidence and the submissions of the Respondent. It is submitted that the High Court of Australia in the matter of State of Queensland and Anor  JL Holdings Pty Ltd has dealt with the issues at hand... </sentence>
<sentence from="[2009] FMCA 1028" id="cs10">This is not a case in which the initiating application was struck out for reasons advanced by the respondent (cf Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 ; [2007] FCA 879). In any event, as Tracey J pointed out in that case at [32], it is relevant that while a pleading which discloses no reasonable cause of action may be struck out, it does not necessarily follow that the party whose pleading has been struck out " acted unreasonably by seeking to rely on the deficient pleading. An objective analysis of the particular party's conduct will be necessary in each case ". Similarly while a party may seek to amend a pleading, it does not necessarily follow that the party had acted unreasonably in seeking to rely on that pleading. </sentence>
<sentence from="[2009] FMCA 1022" id="cs11">Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case. [8] </sentence>
<sentence from="[2009] FCA 987" id="cs12">The directors therefore argued that since s 728 was not in force at the time of Mr Premachandra's employment, the claim against them under it was doomed to fail. Although costs were not generally to be awarded in matters arising under the 1996 Act this was not so where the proceedings were instituted without reasonable cause: Kanan v Australian Postal and Telecommunication Union (1992) 43 IR 257 at 264-265 per Wilcox J; Zhang v The Royal Australian Chemical Institute Inc (No. 2) [2005] FCAFC 99 ; (2005) 144 FCR 347 at 354 [49] - [59] per Spender, Kenny and Lander JJ. The commencement of an action which could not possibly succeed should be so characterised, with the consequence that the inspector should be ordered to pay the employer's costs: Australian and International Pilots Association v Qantas Airways Ltd (No. 3) [2007] FCA 879 ; (2007) 162 FCR 392 at 402 [36] per Tracey J. </sentence>
<sentence from="[2009] FCA 571" id="cs13">In Australian and International Pilots Association v QANTAS Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at 396 Tracey J remarked:
 statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission (Vic) [1939] VicLawRp 42 ; [1939] VLR 284 at 297-8; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415.

Here, a contrary legislative intention is evident in relation to any operation O 23 r 11(6) might otherwise have with respect to past events. Like Kenny J in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd (No 2) [2008] FCA 1805 , I consider that such a conclusion is dictated by s 12(2)(b) of the Legislative Instruments Act . I also consider that s 12(2)(a) of the Legislative Instruments Act provides additional support for that view in that, prior to the making of the amendment to the rules, there existed a right to the exercise of a discretion with respect to the awarding of costs unfettered by any such prima facie presumption. </sentence>
<sentence from="[2009] FCA 339" id="cs14">In Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [28] Tracey J made it clear that a party may potentially be liable to pay costs under s 824(2) even if it did not institute the proceeding in which the relevant conduct occurred. The power conferred by s 824(2) can be exercised irrespective of the outcome of the particular application in question, and of the proceeding in its entirety: Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534 at [16] per Young J. Justice Tracey observed that the prosecution of a hopeless case can be regarded as an "unreasonable act" for the purposes of s 824(2): Australian and International Pilots Association v Qantas Airways Ltd (No 3) at [36]. Accordingly, I proceed on the basis that s 824(2) allows costs to be awarded where an applicant has quite unreasonably joined certain respondents to a proceeding in circumstances where the proceeding itself was not instituted vexatiously or without reasonable cause. </sentence>
<sentence from="[2008] FMCA 1475" id="cs15">Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case. [4] </sentence>
<sentence from="[2008] FCAFC 143" id="cs16">28 We turn now to s 824(2) of the WR Act . This provision carves out another exception to the usual rule in s 824(1) that costs orders are not to be made in respect of proceedings in a matter arising under the WR Act . The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 and Siopis J in McAleer v The University of Western Australia (No 2) [2007] FCA 247 ; (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criteria are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.</sentence>
<sentence from="[2008] FMCA 875" id="cs17">In Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 Tracey J said in relation to the section of the WR Act presently under consideration: "28. Section 824(2) is cast more widely. It applies if a party "has, by an unreasonable act or omission, caused another party to the proceeding to incur costs ...". A party may potentially be liable to pay costs under this sub-section even if it did not institute the proceeding in which the relevant conduct occurred. That conduct may be an act or an omission. The liability may arise, as Young J noted in Paras (at 538 [16]), "irrespective of the outcome of the particular application in question and of the proceeding as a whole. " </sentence>
<sentence from="[2008] FMCA 336" id="cs18">Dennington v Pee Cee Pty Ltd (No.2) [2008] FMCA 336 (20 March 2008)

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Last Updated: 26 March 2008

 FEDERAL MAGISTRATES COURT OF AUSTRALIA
 DENNINGTON v PEE CEE PTY LTD (No.2) [2008] FMCA 336
 INDUSTRIAL LAW --- Costs application --- penalty proceedings --- notice to admit --- unreasonable act or omission --- application dismissed. Workplace Relations Act 1996 (Cth), ss.824(1) , 824 (2)
 Federal Magistrates Court Rules 2001 (Cth), r.15.31
 Ansari v Commonwealth Bank of Australia Limited [2007] FCA 1908
 Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879
 Hatchett v Bowater Tutt Industries Pty Ltd (No. 2) [1991] FCA 188 ; (1991) 28 FCR 324
 Lee Conversancy Board v Button (1897) 12 Ch D 383
 McAleer v University of Western Australia (No. 2) [2007] FCA 247 ; [2007] 161 IR 151
 Paras v Public Service Body Head of the Department of Infrastructure (No.3) [2006] FCA 745
 Tristar Steering and Suspension Australia Limited v Industrial Relations Commission of New South Wales (No.2) [2007] FCAFC 95
 Applicant: SALLY DENNINGTON
 Respondent: PEE CEE PTY LTD (ACN 069 384 572)
 File Number: LNG 20 of 2007
 Judgment of: O'Sullivan FM
 Hearing date: Written submissions
 Date of Last Submission: 13 March 2008
 Delivered at: Melbourne by telephone link to Hobart
 Delivered on: 20 March 2008
 REPRESENTATION
 Counsel for the Applicant: Mr Justin Zeeman
 Solicitors for the Applicant: Zeeman  Zeeman
 Counsel for the Respondent: Mr Craig Green
 Solicitors for the Respondent: Page Seager
 ORDERS

 (1) There be no order for costs.
 FEDERAL MAGISTRATES
 COURT OF AUSTRALIA AT
 MELBOURNE
 LNG 20 of 2007
 SALLY DENNINGTON
Applicant

And

 PEE CEE PTY LTD (ACN 069 374 572)
Respondent

 REASONS FOR JUDGMENT
 These reasons for decision concern an application for costs arising from proceedings which Sally Dennington, a workplace inspector ("the applicant"), commenced in 2007. In those proceedings, the applicant sought inter alia penalties against Pee Cee Pty Ltd ("the respondent") for breaches of the Workplace Relations Act 1996 ("the WR Act").  In Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 Tracey J said in relation to the section of the WR Act presently under consideration: "28. Section 824(2) is cast more widely. It applies if a party "has, by an unreasonable act or omission, caused another party to the proceeding to incur costs ...". A party may potentially be liable to pay costs under this sub-section even if it did not institute the proceeding in which the relevant conduct occurred. That conduct may be an act or an omission. The liability may arise, as Young J noted in Paras (at 538 [16]), "irrespective of the outcome of the particular application in question and of the proceeding as a whole. " </sentence>
</citances>
<legistitles>
<title id="l0">ACTS INTERPRETATION ACT 1901 </title>
<title id="l1">ACTS INTERPRETATION ACT 1901 - SECT 8 Effect of repeal</title>
<title id="l2">ACTS INTERPRETATION ACT 1901 - SECT 8A Implied repeals etc.</title>
<title id="l3">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l4">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 43 Costs</title>
<title id="l5">FEDERAL COURT RULES </title>
<title id="l6">WORKPLACE RELATIONS REGULATIONS 2006 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FMCA 33">migration</citphrase>
<citphrase id="cp0.1">cited from="[2006] FMCA 33">review of decision of rrt</citphrase>
<citphrase id="cp0.2">cited from="[2006] FMCA 33">whether the tribunal came to its conclusions on the basis of independent country information that the tribunal accepted but which the applicant claimed was propaganda</citphrase>
<citphrase id="cp0.3">cited from="[2006] FMCA 33">whether the tribunal should have found that there is a real chance that the applicant would be persecuted based upon his membership of a particular social group.</citphrase>
<citphrase id="cp1.0">cited from="[2006] FMCA 32">migration</citphrase>
<citphrase id="cp1.1">cited from="[2006] FMCA 32">review of decision of rrt</citphrase>
<citphrase id="cp1.2">cited from="[2006] FMCA 32">application for an adjournment to seek legal advice.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">FEDERAL MAGISTRATES COURT RULES 2001 </title>
<title id="l1">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">NATIVE TITLE ACT 1993 </title>
<title id="l1">NATIVE TITLE ACT 1993 - SECT 61 Native title and compensation applications</title>
<title id="l2">FEDERAL COURT RULES </title>
<title id="l3">ABORIGINAL LAND RIGHTS ACT 1983 </title>
<title id="l4">ABORIGINAL LAND RIGHTS ACT 1983 - SECT 36 Claims to Crown lands</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 755">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 755">costs</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 755">circumstances under which indemnity costs will be ordered</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 755">calderbank offers</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 755">whether offer by respondents to accept substantial amount by way of costs if applicant discontinues proceeding constitutes a calderbank offer</citphrase>
<citphrase id="cp3.0">cited from="[2004] NSWCA 341">costs</citphrase>
<citphrase id="cp3.1">cited from="[2004] NSWCA 341">application for indemnity costs</citphrase>
<citphrase id="cp3.2">cited from="[2004] NSWCA 341">calderbank letter sent by appellant prior to proceedings below offering settlement in terms "verdict in favour of the council with each party to bear its own costs"</citphrase>
<citphrase id="cp3.3">cited from="[2004] NSWCA 341">whether genuine offer of compromise</citphrase>
<citphrase id="cp3.4">cited from="[2004] NSWCA 341">whether discretion to award indemnity costs should be exercised.</citphrase>
<citphrase id="cp4.0">cited from="[2004] FCA 1212">practice and procedure</citphrase>
<citphrase id="cp4.1">cited from="[2004] FCA 1212">costs</citphrase>
<citphrase id="cp4.2">cited from="[2004] FCA 1212">whether costs should be assessed on an indemnity or solicitor/client basis</citphrase>
<citphrase id="cp4.3">cited from="[2004] FCA 1212">where a calderbank offer allegedly made by respondents</citphrase>
<citphrase id="cp4.4">cited from="[2004] FCA 1212">applicant's failure to accept the offer not unreasonable</citphrase>
<citphrase id="cp4.5">cited from="[2004] FCA 1212">whether a 'compromise' in the relevant sense where the offer is for application to be withdrawn and each party to bear its own costs</citphrase>
<citphrase id="cp7.0">cited from="[2001] NSWCA 145">costs</citphrase>
<citphrase id="cp7.1">cited from="[2001] NSWCA 145">calderbank letter</citphrase>
<citphrase id="cp7.2">cited from="[2001] NSWCA 145">in substance, invited capitulation</citphrase>
<citphrase id="cp7.3">cited from="[2001] NSWCA 145">appeal was arguable and decided by majority</citphrase>
<citphrase id="cp7.4">cited from="[2001] NSWCA 145">no special costs order. nd.</citphrase>
<citphrase id="cp9.0">cited from="[1993] FCA 536">costs</citphrase>
<citphrase id="cp9.1">cited from="[1993] FCA 536">application that respondent's costs of certain issues be paid on indemnity basis</citphrase>
<citphrase id="cp9.2">cited from="[1993] FCA 536">discussion of applicable principles.</citphrase>
<citphrase id="cp10.0">cited from="[1993] FCA 42">costs</citphrase>
<citphrase id="cp10.1">cited from="[1993] FCA 42">apportionment of costs</citphrase>
<citphrase id="cp10.2">cited from="[1993] FCA 42">party unsuccessful on some issues</citphrase>
<citphrase id="cp10.3">cited from="[1993] FCA 42">principles governing apportionment</citphrase>
<citphrase id="cp10.4">cited from="[1993] FCA 42">case management considerations</citphrase>
<citphrase id="cp10.5">cited from="[1993] FCA 42">bullock or sanderson orders</citphrase>
<citphrase id="cp10.6">cited from="[1993] FCA 42">indemnity costs.</citphrase>
<citphrase id="cp11.0">cited from="[1988] FCA 202">practice and procedure</citphrase>
<citphrase id="cp11.1">cited from="[1988] FCA 202">costs</citphrase>
<citphrase id="cp11.2">cited from="[1988] FCA 202">discretion of the court</citphrase>
<citphrase id="cp11.3">cited from="[1988] FCA 202">award on solicitor and client' or indemnity' basis</citphrase>
<citphrase id="cp11.4">cited from="[1988] FCA 202">whether application vexatious</citphrase>
<citphrase id="cp11.5">cited from="[1988] FCA 202">form of order.</citphrase>
<citphrase id="cp12.0">citing from="[2011] VSC 117">costs</citphrase>
<citphrase id="cp12.1">citing from="[2011] VSC 117">calderbank offers</citphrase>
<citphrase id="cp12.2">citing from="[2011] VSC 117">defendants seeking indemnity costs or solicitor and client costs</citphrase>
<citphrase id="cp12.3">citing from="[2011] VSC 117">whether the offers were a genuine attempt at compromise</citphrase>
<citphrase id="cp12.4">citing from="[2011] VSC 117">whether it was unreasonable for the plaintiff to reject the offers</citphrase>
<citphrase id="cp12.5">citing from="[2011] VSC 117">whether allegations of wilful misrepresentation being unreasonable or having no proper factual basis requires a special costs order</citphrase>
<citphrase id="cp12.6">citing from="[2011] VSC 117">continuation of claims for wilful misrepresentation where no reasonable prospect of success</citphrase>
<citphrase id="cp13.0">citing from="[2010] FCA 761">practice  procedure</citphrase>
<citphrase id="cp13.1">citing from="[2010] FCA 761">application for leave to discontinue proceedings</citphrase>
<citphrase id="cp13.2">citing from="[2010] FCA 761">no reasonable prospect of success</citphrase>
<citphrase id="cp13.3">citing from="[2010] FCA 761">application for leave dismissed</citphrase>
<citphrase id="cp13.4">citing from="[2010] FCA 761">substantive application dismissed.  costs</citphrase>
<citphrase id="cp13.5">citing from="[2010] FCA 761">award on solicitor and client or indemnity basis</citphrase>
<citphrase id="cp13.6">citing from="[2010] FCA 761">where applicant seeks leave to discontinue proceedings</citphrase>
<citphrase id="cp13.7">citing from="[2010] FCA 761">whether action commenced or continued where no prospect of success.  trade practices</citphrase>
<citphrase id="cp13.8">citing from="[2010] FCA 761">application for damages and injunctive relief for alleged misuse of market power under s 46 of the trade practices act.</citphrase>
<citphrase id="cp14.0">citing from="[2010] FCA 506">costs</citphrase>
<citphrase id="cp14.1">citing from="[2010] FCA 506">whether inadequacy of decision maker's statement of reasons has a bearing on costs</citphrase>
<citphrase id="cp14.2">citing from="[2010] FCA 506">whether indemnity costs should be ordered</citphrase>
<citphrase id="cp14.3">citing from="[2010] FCA 506">whether refusal of calderbank offer was unreasonable</citphrase>
<citphrase id="cp14.4">citing from="[2010] FCA 506">whether indemnity costs appropriate because proceeding was brought and maintained for ulterior or extraneous purpose.</citphrase>
<citphrase id="cp15.0">citing from="[2010] FCA 456">costs</citphrase>
<citphrase id="cp15.1">citing from="[2010] FCA 456">whether indemnity costs or party and party costs are appropriate</citphrase>
<citphrase id="cp15.2">citing from="[2010] FCA 456">whether apportionment of costs is appropriate</citphrase>
<citphrase id="cp16.0">citing from="[2010] FCA 406">costs</citphrase>
<citphrase id="cp16.1">citing from="[2010] FCA 406">whether indemnity costs are appropriate</citphrase>
<citphrase id="cp16.2">citing from="[2010] FCA 406">whether calderbank offers are genuine offers and whether rejection is unreasonable</citphrase>
<citphrase id="cp16.3">citing from="[2010] FCA 406">party and party costs amended</citphrase>
<citphrase id="cp17.0">citing from="[2010] FCA 286">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2010] FCA 286">costs</citphrase>
<citphrase id="cp17.2">citing from="[2010] FCA 286">costs sought on an indemnity basis</citphrase>
<citphrase id="cp17.3">citing from="[2010] FCA 286">limitation period</citphrase>
<citphrase id="cp17.4">citing from="[2010] FCA 286">difficulties raised in correspondence</citphrase>
<citphrase id="cp17.5">citing from="[2010] FCA 286">offer of compromise   legislation: federal court of australia act 1976 (cth), ss 43 , 59 (1), 59 (2) federal court rules , o 23 rr 2</citphrase>
<citphrase id="cp17.6">citing from="[2010] FCA 286">4   cases cited: alpine beef pty ltd v trycill pty ltd [2010] fca 136 , cited colgate-palmolive pty ltd v cussons pty ltd [1993] fca 536 ; (1993) 46 fcr 225 , cited</citphrase>
</citphrases>
<citances>
<sentence from="[2011] VSC 117" id="cs0">[11] It was expressed clearly and set out why the plaintiff's claim against the second and third defendants would not succeed.</sentence>
<sentence from="[2010] FCA 761" id="cs1">There are many cases in this court to the same effect including: Cook v Pasminco Ltd (No 2) [2000] FCA 1819 ; (2000) 107 FCR 44 at [65] ; Vasram v AMP Life Ltd [2002] FCA 1286 ; Szencorp Pty Ltd v Clean Energy Council Limited (No 2) [2009] FCA 196 at [9] ; J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301 at 303. The language used in these cases held to justify an indemnity costs order was that the particular case "had no prospect of success" in Cook ; "was seriously flawed" in Vasram and "was hopeless" in J-Corp . </sentence>
<sentence from="[2010] FCA 506" id="cs2">Some of these authorities, together with other authorities for the same proposition, were considered by Goldberg J in Szencorp Pty Ltd v Clean Energy Council Limited (No 2) [2009] FCA 196. Relying on the reasoning of the New South Wales Court of Appeal in Leichardt Municipal Council v Green [2004] NSWCA 341 , Goldberg J did not agree with the proposition that an invitation to an applicant to discontinue proceedings with no order as to costs is not a genuine attempt to resolve the proceeding by way of a compromise, for the purposes of considering the consequences of an offer made in a Calderbank letter. </sentence>
<sentence from="[2010] FCA 456" id="cs3">There are authorities to the effect that a defendant's offer to settle on the basis that each party bears it's own costs is not a Calderbank offer and in any event may not be considered a genuine offer of compromise: see Dresna Pty Ltd v Linknarf Management Services Pty Ltd (in liq) (No 2) [2006] FCA 755 at [20] ; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 ; (2002) 201 ALR 618 at [59] - [60] ; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159 ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; and Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] . It seems to me that the correct approach is to look at the extent of the offer of compromise, viewed with all the other relevant circumstances, to determine whether the rejection of the offer was unreasonable: see Aljade at [78] to [81] per Redlich J; Szencorp Pty Ltd v Clean Energy Council Ltd (No 2) [2009] FCA 196 at [15] per Goldberg J; Fyna Foods at [11]; Vasram at [13]; Nutrientwater Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304 and Rosemin Pty Ltd v Gasp Jeans Chadstone Pty Ltd (No 2) [2010] FCA 406. This is how I have proceeded to consider this application for indemnity costs. </sentence>
<sentence from="[2010] FCA 406" id="cs4">There are authorities to the effect that a respondent's offer to settle on the basis that each party bears it's own costs is not a Calderbank offer and in any event may not be considered a genuine offer of compromise: see Dresna Pty Ltd v Linknarf Management Services Pty Ltd (in liq) (No 2) [2006] FCA 755 at [20] ; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192 ; (2002) 201 ALR 618 at [59] - [60]; McKerlie v New South Wales (No 2) [2000] NSWSC 1159 ; Vasram v AMP Life Limited [2002] FCA 1286 at [12] ; and Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10] . It seems to me that the correct approach is to look at the extent of the offer of compromise viewed with all the other relevant circumstances to determine whether the rejection of the offer was unreasonable: see Aljade and Malaysian Kuwaiti Investment Co SDN BHD (MKIC) v Oversea-Chinese Banking Corp Ltd (OCBC) [2004] VSC 351 at [78] to [81] per Redlich J; Szencorp Pty Ltd v Clean Energy Council Ltd (No 2) [2009] FCA 196 at [15] per Goldberg J; Fyna Foods at [11]; Vasram at [13] and Nutrientwater Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304. This is how I will proceed to consider this application for indemnity costs. </sentence>
<sentence from="[2010] FCA 286" id="cs5">Viewed as at 5 August 2009, the offer then made cannot be characterised as anything other than a genuine assessment as to risks inevitably confronted in any litigation; it cannot be characterised as an attempt to force upon the Applicant what has been referred to in other litigation as an invitation " to capitulate ": Szencorp Pty Ltd v Clean Energy Council Ltd (No 2) [2009] FCA 196 at [14] per Goldberg J. As at 5 August 2009, it is considered that the Applicant should have been in a position where it could assess its prospects of success --- any assessment taking into account such strengths as were perceived to be present together with an assessment of the difficulties, including those which had previously been raised in correspondence. </sentence>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">CORPORATIONS ACT 2001 - SECT 232 Grounds for Court order</title>
<title id="l2">CORPORATIONS ACT 2001 - SECT 233 Orders the Court can make</title>
<title id="l3">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l4">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 43 Costs</title>
<title id="l5">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp8.0">cited from="[2000] HCA 1">re the minister for immigration and multicultural affairs; ex parte durairajasingham  immigration law and administrative law</citphrase>
<citphrase id="cp8.1">cited from="[2000] HCA 1">refugee</citphrase>
<citphrase id="cp8.2">cited from="[2000] HCA 1">refugee review tribunal decision refusing to grant protection visa</citphrase>
<citphrase id="cp8.3">cited from="[2000] HCA 1">application in original jurisdiction of high court for prerogative relief</citphrase>
<citphrase id="cp8.4">cited from="[2000] HCA 1">whether tribunal failed to take into account relevant considerations and evidence</citphrase>
<citphrase id="cp8.5">cited from="[2000] HCA 1">whether tribunal failed to consider all available inferences from evidence</citphrase>
<citphrase id="cp8.6">cited from="[2000] HCA 1">whether s 430(1) of the migration act 1958 (cth) required the tribunal to refer to evidence contrary to its findings</citphrase>
<citphrase id="cp8.7">cited from="[2000] HCA 1">whether a breach of s 430(1) amounts to a jurisdictional error grounding prerogative relief.  constitutional law</citphrase>
<citphrase id="cp8.8">cited from="[2000] HCA 1">federal jurisdiction</citphrase>
<citphrase id="cp8.9">cited from="[2000] HCA 1">role of the high court under the constitution</citphrase>
<citphrase id="cp8.10">cited from="[2000] HCA 1">extent of high court's jurisdiction to grant certiorari pursuant to s 75(v) of the constitution .</citphrase>
<citphrase id="cp11.0">citing from="[2010] FMCA 487">migration</citphrase>
<citphrase id="cp11.1">citing from="[2010] FMCA 487">review of decision of rrt</citphrase>
<citphrase id="cp11.2">citing from="[2010] FMCA 487">where applicant complains about interpretation but does not produce any evidence upon which his claims can be tested.</citphrase>
<citphrase id="cp12.0">citing from="[2010] FMCA 380">migration</citphrase>
<citphrase id="cp12.1">citing from="[2010] FMCA 380">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp12.2">citing from="[2010] FMCA 380">whether translation errors at tribunal hearing such that denial of a fair hearing under s.425 of the migration act 1958 (cth)</citphrase>
<citphrase id="cp12.3">citing from="[2010] FMCA 380">whether conduct of migration agent amounted to third party fraud such that the tribunal was unable to discharge its statutory functions.</citphrase>
<citphrase id="cp13.0">citing from="[2009] FMCA 1219">migration</citphrase>
<citphrase id="cp13.1">citing from="[2009] FMCA 1219">review of decision of rrt</citphrase>
<citphrase id="cp13.2">citing from="[2009] FMCA 1219">where applicant's grounds for suggesting tribunal made a jurisdictional error are confused and not particularised.</citphrase>
<citphrase id="cp14.0">citing from="[2009] FMCA 1068">migration</citphrase>
<citphrase id="cp14.1">citing from="[2009] FMCA 1068">review of decision of rrt</citphrase>
<citphrase id="cp14.2">citing from="[2009] FMCA 1068">where applicant identifies translation error in matter which constituted a ground for tribunal's credibility finding</citphrase>
<citphrase id="cp14.3">citing from="[2009] FMCA 1068">whether decision in applicant p119/2002 constituted dicta followed by federal court</citphrase>
<citphrase id="cp14.4">citing from="[2009] FMCA 1068">whether szjqn was a decision that was clearly wrong</citphrase>
<citphrase id="cp14.5">citing from="[2009] FMCA 1068">whether admitted error in translation was material</citphrase>
<citphrase id="cp14.6">citing from="[2009] FMCA 1068">whether other claims of "want of logic" or "lack of evidence" were sustainable.</citphrase>
<citphrase id="cp15.0">citing from="[2009] FMCA 972">migration</citphrase>
<citphrase id="cp15.1">citing from="[2009] FMCA 972">application for review of rrt decision</citphrase>
<citphrase id="cp15.2">citing from="[2009] FMCA 972">applicant citizen of india</citphrase>
<citphrase id="cp15.3">citing from="[2009] FMCA 972">where applicant claimed to be member of radical youth league</citphrase>
<citphrase id="cp15.4">citing from="[2009] FMCA 972">where tribunal did not find applicant to be credible witness</citphrase>
<citphrase id="cp15.5">citing from="[2009] FMCA 972">where applicant alleges standard of interpretation deficient but provides no evidence by way of transcript</citphrase>
<citphrase id="cp15.6">citing from="[2009] FMCA 972">where grounds of review not particularised.</citphrase>
<citphrase id="cp16.0">citing from="[2009] FMCA 180">migration</citphrase>
<citphrase id="cp16.1">citing from="[2009] FMCA 180">review of rrt decision</citphrase>
<citphrase id="cp16.2">citing from="[2009] FMCA 180">where applicant's evidence contained inconsistencies</citphrase>
<citphrase id="cp16.3">citing from="[2009] FMCA 180">whether this constituted "information"</citphrase>
<citphrase id="cp16.4">citing from="[2009] FMCA 180">relationship between s.424a and s.424aa</citphrase>
<citphrase id="cp16.5">citing from="[2009] FMCA 180">quality of translation considered.</citphrase>
<citphrase id="cp17.0">citing from="[2009] FMCA 109">migration</citphrase>
<citphrase id="cp17.1">citing from="[2009] FMCA 109">application for review of rrt decision</citphrase>
<citphrase id="cp17.2">citing from="[2009] FMCA 109">where applicant does not particularise grounds of application.</citphrase>
<citphrase id="cp18.0">citing from="[2008] FMCA 1601">migration</citphrase>
<citphrase id="cp18.1">citing from="[2008] FMCA 1601">review of decision of rrt</citphrase>
<citphrase id="cp18.2">citing from="[2008] FMCA 1601">where applicant alleges failure to comply with s.424a migration act 1958 .</citphrase>
<citphrase id="cp21.0">citing from="[2008] FMCA 880">migration</citphrase>
<citphrase id="cp21.1">citing from="[2008] FMCA 880">review of decision of rrt</citphrase>
<citphrase id="cp21.2">citing from="[2008] FMCA 880">where applicant claims tribunal ignored information</citphrase>
<citphrase id="cp21.3">citing from="[2008] FMCA 880">where applicant alleges standard of interpretation deficient but provides no evidence by way of transcript or otherwise and does not seek an adjournment.</citphrase>
<citphrase id="cp22.0">citing from="[2008] FMCA 881">migration</citphrase>
<citphrase id="cp22.1">citing from="[2008] FMCA 881">review of decision of rrt</citphrase>
<citphrase id="cp22.2">citing from="[2008] FMCA 881">where tribunal considered the applicant provided changing evidence</citphrase>
<citphrase id="cp22.3">citing from="[2008] FMCA 881">where applicant provided documents to the tribunal which were given no weight because of their illegibility</citphrase>
<citphrase id="cp22.4">citing from="[2008] FMCA 881">whether breach of s.424a migration act 1958 (cth)</citphrase>
<citphrase id="cp22.5">citing from="[2008] FMCA 881">whether tribunal complied with s.430(1) migration act 1958</citphrase>
<citphrase id="cp22.6">citing from="[2008] FMCA 881">whether tribunal conducted hearing in accordance with s.425 migration act 1958 .</citphrase>
<citphrase id="cp23.0">citing from="[2008] FMCA 744">migration</citphrase>
<citphrase id="cp23.1">citing from="[2008] FMCA 744">review of decision of rrt</citphrase>
<citphrase id="cp23.2">citing from="[2008] FMCA 744">no point of principle.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FMCA 487" id="cs0">The difficulty which I have with this assertion is this, firstly, Middleton J in SZJZE v Minister for Immigration [2007] FCA 1653 said with regard to a ground complaining of inadequate interpretation: "With respect for the first ground, in order for the appellants to succeed, they need to establish, by probative evidence, that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants [authorities omitted]. "
The applicant has not provided me with any evidence at all. And although his complaint about the paragraph has an initial ring of possible truth to it, on closer examination, it appears to have some difficulties.</sentence>
<sentence from="[2010] FMCA 380" id="cs1">It was not disputed that the principles referred to in Appellant P119/2002 (which have been followed or cited with approval on numerous occasions: for example WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 ; SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 ; SZJZS v Minister for Immigration and Citizenship and Another (2008) 102 ALD 318 ; [2008] FCA 789 ; SZNCW v Minister for Immigration and Citizenship [2009] FCA 818 ; SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 ; SZGSI and Another v Minister for Immigration and Citizenship and Another (2009) 107 ALD 414 ; [2009] FCA 200) are applicable. </sentence>
<sentence from="[2009] FMCA 1219" id="cs2">The second ground was that: "The Tribunal failed to consider the first respondents invite the applicant for a hearing using the assistance of a different interpreter. "
I find this ground difficult to understand. If it is a complaint about the interpretation at the hearing before the Tribunal then this cannot be made to the court without some evidence to support it. Whilst inadequate interpretation can amount to a breach of s.425 ; M175 of 2002 v Minister for Immigration [2007] FCA 1212 per Gray J, a claim such as that must be proved. Middleton J said in SZJZE v Minister for Immigration [2007] FCA 1653 at [21] :

 "In order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. " [There follows a series of authorities]

It is normal in cases of this nature to have a transcript of the evidence and some evidence from a qualified interpreter that shows what the alleged failings are. None of this has been provided in this case and that ground must be rejected. </sentence>
<sentence from="[2009] FMCA 1068" id="cs3">The integers of jurisdictional error arising out of mistranslation as articulated in P119/2002 , as extracted, appeared to have been accepted in a number of Federal Court decisions; WALN v Minister for Immigration [2006] FCAFC 131 per Ryan J (with whom Tamberlin and Middleton JJ agreed at [29]); SZJZE v Minister for Immigration [2007] FCA 1653 per Middleton J and SZJZS v Minister for Immigration [2008] FCA 789 per Flick J. In this year alone, three Judges of the Federal Court, hearing matters on appeal from this Court, have made direct reference and set out with approval the two criteria referred to in P119/2002. SZNCW v Minister for Immigration [2009] FCA 818 per Barker J; SZHEW v Minister for Immigration [2009] FCA 783 per Jagot J, where her Honour said at [49]; This approach reflects the reasoning of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507.</sentence>
<sentence from="[2009] FMCA 972" id="cs4">The complaints about interpretation may also be particulars of the breach of natural justice claim by the applicant. Whilst I accept that there are circumstances in which a failure to interpret would mean that the applicant was not provided with a proper hearing pursuant to s.425 of the Migration Act 1958 (the "Act") this is not one of those cases because the applicant has not provided appropriate evidence. And insofar as natural justice is concerned the applicant is subject to the provisions of s.422B of the Act and has not provided the court with any particulars of a breach of the Division. Insofar as the interpretation complaints are concerned I would note that SZGYM v Minister for Immigration [2007] FCA 1923 is authority for the argument that inadequate interpretation can amount to breach of s.425 but that SZJZE v Minister for Immigration [2007] FCA 1653 per Middleton J at [21] makes it clear that the applicant has to establish by probative evidence that: "(a) The standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. "
Finally, the full bench in WACO v Minister for Immigration [2003] FCAFC 171 indicated that a perfect translation was not necessary. </sentence>
<sentence from="[2009] FMCA 180" id="cs5">If the applicant is making a complaint about the quality of the translation which would constitute a claim that s.425 of the Act has not been complied with, he would have to do more than to make a bold assertion at the hearing. While the Court accepts that inadequate interpretation can amount to a breach of s.425: SZGYM v Minister for Immigration  Anor [2007] FCA 1923 , there is a strong obligation upon the applicant to establish inadequate interpretation: SZJZE v Minister for Immigration  Anor [2007] FCA 1653 where his Honour, Middleton J said at [21]: "With respect to the first ground, in order for the appellants to succeed they need to establish by prohibitive evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants [see authorities there cited].
It should also be remembered that in WACO v Minister for Immigration  Anor [2003] FCAFC 171 the Full Bench said at [66]:

 "However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate to permit the idea or concept being translated to be communicated. "
 </sentence>
<sentence from="[2009] FMCA 109" id="cs6">Finally, the applicant told me that the interpreter could not help her communicate very well with the Judge. Apparently, the interpreter had told her about halfway through the hearing that she was not feeling well. Once again I have no evidence of this, other than the applicant's statement. If she really wished to allege that interpreting difficulties were such as to bring her within the scope of authorities such as SZGYM v Minister for Immigration [2007] FCA 1923 , M175 of 2002 v Minister for Immigration [2007] FCA 1212 , SZJZE v Minister for Immigration [2007] FCA 1653 , Perera v Minister for Immigration [1999] FCA 507 , she would have to produce some evidence. This could have been from the interpreter herself or from the hearing tape. Once again nothing was produced to me. This Court is only able to deal with matters as they come before it on the day of the hearing. The applicant did not ask for an adjournment to obtain the tape but had she done so, I would have been reluctant to grant it. The applicant has had considerable notice of this hearing. </sentence>
<sentence from="[2008] FMCA 1601" id="cs7">Before me today the applicant said that the member could not understand what she was saying and therefore he was biased against her. I note that the applicant had the benefit of a Cantonese interpreter who she had specifically requested in her response to the hearing invitation. She has not produced any evidence that the interpretation was inadequate. It is clear that an applicant must establish to a very high standard the inadequacy of any interpretation SZJZE v Minister for Immigration [2007] FCA 1653 at [21] and the authorities there referred to; WALN v Minister for Immigration [2006] FCAFC 131 at [29] and the authorities there referred to. This test can only be passed by the bringing of evidence and here none has been brought. In any event a failure of interpretation is not an indicator of bias or apprehended bias. The applicant then read out from a document written in Mandarin or Cantonese which made further allegations of bias without any particulars and claimed that the Tribunal did not judge her application in accordance with the Act and refused her application without any evidence or material. Of course, it is up to the applicant to establish her own claim, the Tribunal is not a contradictor, Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], SZATG v Minister for Immigration [2004] FCA 1595 per Hely J at [36], Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Kirby J at [78]. </sentence>
<sentence from="[2008] FCA 1462" id="cs8">15 His Honour also found that there was no proof that the standard of interpretation was inadequate, in the sense described by Justice Middleton in SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653. </sentence>
<sentence from="[2008] FCA 1397" id="cs9">14 In relation to the fourth ground, his Honour interpreted this claim as a failure to comply with s 425 of the Act and found that the appellant bore a heavy onus in demonstrating that the hearing conducted by the Tribunal failed to 'fulfil the promise of the invitation' to hearing, citing SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653. His Honour then said: '... one would say that in order for the [appellant] to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the [appellant] properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The [appellant] has not done this and has not requested an adjournment to do so. I am unable to assist the [appellant] in relation to this ground'.</sentence>
<sentence from="[2008] FMCA 880" id="cs10">In SZJZE v Minister for Immigration [2007] FCA 1653 Middleton J opined at [21]
"in order for the appellants to succeed they need to establish by probative evidence that:

 (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or

 (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. Citations omitted. "

I do not have anything before me that would assist me to make a conclusion on either of these aspects of the matter. </sentence>
<sentence from="[2008] FMCA 881" id="cs11">However, although also in relation to the interpretation, the Courts have placed a heavy onus upon an applicant to establish that the hearing did not fulfil the promise of the invitation. So in SZJZE v Minister [2007] FCA 1653 Middleton J said at [21]: "With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. "
By analogy one would say that in order for the applicant to establish that the length of the hearing and the nature of the questioning was such as to negative any ability of the applicant properly to put his case, he would have to produce, at the very least, the tape-recording and preferably a transcript of the hearing. The applicant has not done this and has not requested an adjournment to do so. I am unable to assist the applicant in relation to this ground. </sentence>
<sentence from="[2008] FMCA 744" id="cs12">The sixth claim made by the applicant related to the interpretation. This matter was raised by the applicant today at the hearing. The applicant claimed that the interpretation was inadequate and did not express the real substance of his evidence. An inadequate interpretation can amount to a breach of s.425 of the Act; SZGYM v Minister for Immigration [2007] FCA 1923 ; SZIWK v Minister for Immigration [2007] FCA 168 , but in order to obtain relief on this ground the applicant must prove that the interpretation is inadequate. As Middleton J said in SZJZE v Minister for Immigration [2007] FCA 1653 at [21] : "With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that: (a) The standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or, (b) Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. See generally Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17] " (and numerous other authorities cited)
The applicant has not complied with the strictures identified by Middleton J and has merely asserted a failure of the interpretation at the Tribunal hearing. </sentence>
</citances>
<legistitles>
<title id="l0">MIGRATION ACT 1958 </title>
<title id="l1">MIGRATION ACT 1958 - SECT 36 Protection visas</title>
<title id="l2">MIGRATION ACT 1958 - SECT 417 Minister may substitute more favourable decision</title>
<title id="l3">MIGRATION ACT 1958 - SECT 424 Tribunal may seek information</title>
<title id="l4">MIGRATION ACT 1958 - SECT 425 Tribunal must invite applicant to appear</title>
<title id="l5">MIGRATION ACT 1958 - SECT 427 Powers of the Refugee Review Tribunal etc.</title>
<title id="l6">FEDERAL COURT RULES </title>
</legistitles>
</case>