mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Colbeam Palmer Limited v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25
Outcome: followed
evidence before me proves, in my opinion, that the registered mark, GHD, has become well-known, and associated with hairstyling products of a particular good repute and quality. That being so, remarks made by Windeyer J in Colbeam Palmer Limited v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 are pertinent: All profits made by an infringer by selling goods of that kind under that name may in some cases be said to be attributable to his use of the mark. In cases of that sort the buyer of the goods is taken to have bought them because of the mark under which they were sold. If that mark was for him an inducement, not necessarily the sole inducing cause of his buying the goods, the infringing seller is accountable to the owner of the mark for the profit he made by the sale. Those sentiments apply equally in respect of a claim by an authorised licensee of the registered mark. There is not an exact correspondence as between the affidavits of Mr Gubecka and Mr Jakin as to the number of counterfeit irons imported. Mr Gubecka's evidence is that 175 counterfeit irons were imported. Mr Jakin's evidence is that, to the best of his recollection, in the period of his involvement in the ordering and sale of the counterfeit irons about 160 were purchased. Of the two, Mr Gubecka appears to have had the greater involvement in the activities of GHD Australia Direct. I note that it is to his affidavit that invoices from a Chinese company, Mount Rise Limited, in respect of the sale of the counterfeit irons, are exhibited. Further, on the face of those invoices, the buyer is shown as Mr Gubecka, rather than Mr Jakin.
Case: BZAC v Refugee Review Tribunal (2005) FCA 675
Outcome: applied
Greenwood J was exercising the appellate jurisdiction of the Court. There is no jurisdiction in this Court to entertain a purported appeal in the Court's appellate jurisdiction from a judgment of the type given by Greenwood J: see s 24(1AAA) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the process filed on 29 August 2006 does not engage the Court's appellate jurisdiction and does not otherwise engage the Court's jurisdiction save to the extent that I have jurisdiction to determine whether the Court has jurisdiction. So much was established by Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287. I have jurisdiction to exercise the power to make an order under s 23 of the Act dismissing the process filed on 29 August 2006 as incompetent. A similar conclusion was reached by Spender J in BZAC v Refugee Review Tribunal (2005) FCA 675 which was referred to with approval by Conti J in a Full Court in Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59.
Case: Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287
Outcome: applied
Greenwood J was exercising the appellate jurisdiction of the Court. There is no jurisdiction in this Court to entertain a purported appeal in the Court's appellate jurisdiction from a judgment of the type given by Greenwood J: see s 24(1AAA) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the process filed on 29 August 2006 does not engage the Court's appellate jurisdiction and does not otherwise engage the Court's jurisdiction save to the extent that I have jurisdiction to determine whether the Court has jurisdiction. So much was established by Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287. I have jurisdiction to exercise the power to make an order under s 23 of the Act dismissing the process filed on 29 August 2006 as incompetent. A similar conclusion was reached by Spender J in BZAC v Refugee Review Tribunal (2005) FCA 675 which was referred to with approval by Conti J in a Full Court in Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59.
Case: SZIBP v Minister for Immigration and Citizenship [2007] FMCA 404
Outcome: affirmed
This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The nature of the appellant's visa application, the reasoning of the Tribunal and the decision of the Federal Magistrates Court are set out in the judgment of the Federal Magistrate, which is available on the internet: SZIBP v Minister for Immigration and Citizenship [2007] FMCA 404. 2 The appellant is a citizen of China. He arrived in Australia on 15 April 2001 on a student visa, valid until 15 March 2004. After the expiry of his visa he took no further steps to remain in Australia lawfully. On 22 June 2005 he was detained in immigration detention by the Department. Shortly after detention he applied for a protection visa. 3 The appellant claimed to have a well-founded fear of persecution in China because he was a Falun Gong practitioner. He claimed to have started practising Falun Gong two years prior to the ban in 1999. He claimed to have practised twice a week in a park. After the ban, his father paid a fine, and later a bribe to the Public Security Bureau so that the appellant would not be arrested. He continued to practise Falun Gong at the homes of members. He claimed in his protection visa application that "then things became really bad". His father organised a student visa for him and he went to Australia. He claimed that after he left China, the PSB came to his house and asked his father to write a confession which implicated the appellant's family in the escape of a Falun Gong member. The confession was then used to extort money from the appellant's family and restrictions were placed on his father's business. The appellant feared that he would be detained and threatened by the PSB on his return to China.
Case: Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
The grounds in the notice of appeal in this Court can be summarised as: first: the Tribunal's decision was a jurisdictional error; secondly: the Tribunal's decision involved a procedural error constituting a breach of natural justice; thirdly: the Federal Magistrate did not give sufficient consideration to whether the Tribunal afforded the appellant natural justice, namely whether the Tribunal applied the correct test of persecution under the Convention. The fourth ground is simply a restatement of the test of jurisdictional error from Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163. The fifth ground was: "Regarding to other issues raised from the Tribunal's decision, it is obviously ill-founded without any substantial evidences excepting it is erroneous findings based. It is poor knowledge and understanding about membership of a particular social group activities as a Falun-Gong practitioner and organization in China." 8 The appellant filed written submissions which summarised the history of his visa application and asserted matters relating to his alleged connection with Falun Gong. The only part dealing with the merits of the appeal were as follows: The Tribunal's findings about the commitment to Falun Gong, it did not deal with the question presented by section 36(2) of the Migration Act did Australia owe protection obligations to me? That is, the Tribunal did not correctly apply the law to the facts. In the preceding circumstances, the Tribunal constructively failed to exercise its jurisdiction by not asking me the correct questions. That is, the Tribunal was required to consider what might happen to me if I openly practised Falun Gong. Elsewhere, the Tribunal found that "the full facts are yet to be established" as to whether operatives from the Chinese government had knowledge about my Falun Gong activities in Australia. In the preceding circumstances, it is submitted that the Tribunal constructively failed to exercise its jurisdiction and committed a jurisdictional error of law by not acting judicially in accordance with the requirements of the Act. 9 The appellant attended the appeal. He was not legally represented, but was assisted by an interpreter. When invited to address the court orally, he had nothing to say.
Case: Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241
Outcome: applied
It is appropriate and legitimate, in interpreting an award, to have regard to the "obvious intention of the maker of the award"; see Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 259 and 260, per Gray J. At 244, in Seymour , Northrop J had regard to the transcript before the Commission on the making of the relevant award, but derived no assistance from it. Keely J, at 255 to 256, had regard to the transcript in arriving at his interpretation of the award. 23 Mr Burrows tended a document, before Blair C, on which the Commission relied in making sub-cl 24. The document was headed "Intent of the Variation". In its first paragraph it referred to full time employees. It stated that: "Full time employees who only work Monday-Friday as normal rostered hours will receive the public holiday benefit on the "substituted" days. This is exactly the same as currently exists." In this regard a reference to a substituted day is a day substituted by the award, formerly by sub-cl 22(b) of the 1992 award and now by sub-cl 24.2 of the current Award. The "intent document" continued: "Full time employees who are not Monday-Friday workers will receive the public holiday benefits on the "actual" day, ie 25 December, 26 December and 1 January. This group includes employees who work either rotating rosters or fixed days other than Monday-Friday." This definition includes the employees the subject of this proceeding. 24 The Commission, in making what became cl 24 of the current Award, intended to ensure that employees, who worked on Christmas Day, Boxing Day or New Years Day, when those days fell on a weekend day, would receive the public holiday rate of pay for work performed on those days. There is no evidence that the Commission intended to expand the number of public holidays provided for by the award in respect of the Christmas-New Year period, thereby giving a nurse an entitlement to a paid public holiday as well as an additional public holiday declared by the State, in recognition of the fact that 25 and 26 December and 1 January were weekend days.
Case: Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681
Outcome: applied
In this matter, I am satisfied that it is appropriate for me to consider the question of security and not refer the matter to a Full Court. The relevant principles were discussed by Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [10] - [11] . In that case, his Honour did not consider it appropriate to convene and refer the application for security for costs to a Full Court. Nor did Spender J in Dranichnikov v Centrelink [2002] FCA 1622 , where his Honour took a similar course.
Case: Dranichnikov v Centrelink [2002] FCA 1622
Outcome: applied
In this matter, I am satisfied that it is appropriate for me to consider the question of security and not refer the matter to a Full Court. The relevant principles were discussed by Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [10] - [11] . In that case, his Honour did not consider it appropriate to convene and refer the application for security for costs to a Full Court. Nor did Spender J in Dranichnikov v Centrelink [2002] FCA 1622 , where his Honour took a similar course.
Case: Endormer Pty Ltd (in liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510
Outcome: distinguished
Both these decisions considered a contrary approach to that expressed by Beaumont J in Endormer Pty Ltd (in liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510 , in which his Honour held that the jurisdiction to order security for costs of an appeal should more properly be exercised by a Full Court. 6 In my view, a single Judge has jurisdiction to hear an application and, in the present case, it is appropriate to do so rather than convene a Full Court to hear the application for security for costs. Moreover, having heard the matter over several days, I am familiar with the background of the matter.
Case: Keating v Morris &amp; Ors (Moynihan J, Supreme Court of Queensland, 1 September 2005 unreported)
Outcome: applied
It was submitted by Mr Anthony Morris QC for Mr Cooper that, as I had previously expressed adverse views as to the credit of some witnesses in the matter, there may be a perception of apprehended bias and I should therefore consider disqualifying myself from hearing the application for security for costs. I have considered the principles set forth in the decision in Keating v Morris &amp; Ors (Moynihan J, Supreme Court of Queensland, 1 September 2005 unreported) at [32] - [47]. It does not follow simply from my rejection of certain evidence and preference for other evidence that, without more, there is any basis for a perception by a reasonable informed observer that I may be perceived to be affected by apprehended bias on this application for security for costs. Therefore, I reject this submission. 8 The record companies have filed an affidavit by Mr Michael Williams, solicitor for the record companies, dated 22 March 2006. The file number on the copy of this affidavit on the Court file does not refer to the number assigned to the particular appeals, but to the number assigned to the matter at first instance. In my view, nothing turns on this, as the affidavit was accompanied by two notices of motion, one in NSD 61 of 2006 and the other in NSD 150 of 2006 in identical terms. I mention these matters because counsel for E-Talk and Mr Bal has contended that it is inappropriate, without a Court order, that evidence on one application for security for costs should be evidence on the other. I do not accept this submission and I make an order that, since the evidence relates to both applications, it may be used in each. 9 Counsel for E-Talk and Mr Bal also submits that evidence in the affidavit of Mr Williams which does not pertain to the circumstances of E-Talk and Mr Bal should be rejected as against them. I accept this submission, and I have read and used the affidavit only in relation to the particular appellants in question. The form of the affidavit makes it clear which paragraphs relate to each of the appeals and which relate to common matters.
Case: Cowell v Taylor (1885) 31 Ch D 34
Outcome: referred to
The Court has a wide discretion in relation to the grant of security for costs. There is no general rule because each case depends upon its own circumstances. In relation to an appeal, Courts have given weight to the injustice that might be caused to a successful litigant if the litigant is compelled to contest the matter for a second time without the probability of obtaining the costs if ultimately successful: Cowell v Taylor (1885) 31 Ch D 34 at 38. In Equity Access v Westpac Banking Corp (1989) ATPR 40-972, Hill J at 50,635 listed some of the relevant matters to be considered when deciding whether security for costs ought to be awarded: &#8226; the prosects of success; &#8226; the quantum of risk that a costs order will not be satisfied; &#8226; whether the making of an order would be oppressive in that it would stifle the reasonably arguable claim; &#8226; whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; whether there are aspects of public interest which weigh in the balance against such an order; &#8226; whether there are any particular discretionary matters peculiar to the circumstances of the case.
Case: Equity Access v Westpac Banking Corp (1989) ATPR 40-972
Outcome: applied
The Court has a wide discretion in relation to the grant of security for costs. There is no general rule because each case depends upon its own circumstances. In relation to an appeal, Courts have given weight to the injustice that might be caused to a successful litigant if the litigant is compelled to contest the matter for a second time without the probability of obtaining the costs if ultimately successful: Cowell v Taylor (1885) 31 Ch D 34 at 38. In Equity Access v Westpac Banking Corp (1989) ATPR 40-972, Hill J at 50,635 listed some of the relevant matters to be considered when deciding whether security for costs ought to be awarded: &#8226; the prosects of success; &#8226; the quantum of risk that a costs order will not be satisfied; &#8226; whether the making of an order would be oppressive in that it would stifle the reasonably arguable claim; &#8226; whether any impecuniosity of the appellants arises out of the conduct complained of; &#8226; whether there are aspects of public interest which weigh in the balance against such an order; &#8226; whether there are any particular discretionary matters peculiar to the circumstances of the case.
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: cited
Other relevant considerations affecting the discretion to award costs are also set out in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 per Beazley J; Paton v Campbell Ltd [1993] FCA 449 per Burchett J; Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334 per French J at [28]-[31].
Case: Paton v Campbell Ltd [1993] FCA 449
Outcome: cited
Other relevant considerations affecting the discretion to award costs are also set out in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 per Beazley J; Paton v Campbell Ltd [1993] FCA 449 per Burchett J; Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334 per French J at [28]-[31].
Case: Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334
Outcome: cited
Other relevant considerations affecting the discretion to award costs are also set out in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 per Beazley J; Paton v Campbell Ltd [1993] FCA 449 per Burchett J; Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334 per French J at [28]-[31].
Case: Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456
Outcome: considered
So far as the adjournment of an application for the winding up of company under s 440A is concerned, the authority which has proved influential is a decision of the Queensland Court of Appeal, Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456. Mr McPherson J, with whose judgment Pincus and Davies JJ agreed, remarked at page 457: It is evident from the terms of that subsection [440A(2)] that before it applies, the court must be satisfied not only that there is an administration, but also, as the subsection says, that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. The judge in the present case was not satisfied that it was in the creditor's interests for the administration to continue and it is his decision to that effect that is challenged here. The question of whether an administration should continue, rather than that there be a winding up, is obviously closely related to the further question of whether the creditors could hope to get more by way of payment of their debts from one form of process or administration than from the other. In order to satisfy the court of the matter referred to in s 440A(2) of the Corporations Law, one would expect that there would have to be some persuasive evidence to enable it to be seen that there were assets which, if realized under one form of administration rather than the other, would produce a larger dividend, or at least an accelerated dividend for the creditors. 16 It is possible that in a liquidation of the company, a domino effect might occur, whereby related company loans are called up successively. Whether or not that would lead to a better return to creditors than a continuance of the administration and something of a "wait and see" approach in relation to the proposed refinancing and consequential repayment, is a moot point indeed. The only particular recovery in prospect to which the administrator points in his later affidavit is that of the two preferential payments. That would yield a recovery well short of 100 cents in the dollar for the creditors. 17 What came to be proposed on behalf of the administrators after Mr Quinlivan's affidavit was read, were orders in the following terms: 1. The application for winding up be adjourned until 12 February 2009. 2. The convening period described by section 439A be extended to 13 February 2009. 3. A direction that the meeting of creditors held pursuant to section 439A be held no earlier than 14 February 2009.
Case: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168
Outcome: cited
This application was filed on 5 April 2007 pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act ). The applicant seeks a declaration that the assessment was not properly made by the respondent. It also seeks orders prohibiting the respondent from enforcing the assessment or the penalty assessment. In essence, the applicant claims that the assessment was made in bad faith and for an improper or ulterior purpose, so that in reality there is no assessment at all of its taxation liability in respect of that financial year: cf Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168. 4 By motion of 20 April 2007, the respondent seeks to have the application summarily dismissed on the grounds that it is clearly untenable and that it amounts to an abuse of the process of the Court. Alternatively, the respondent seeks that the statement of claim be struck out as not disclosing a reasonable cause of action. 5 On 16 August 2006, the respondent issued to the applicant a statutory demand (the first statutory demand) pursuant to s 459E of the Corporations Act 2001 (Cth) (the Corporations Act ) in respect of the monies owing under the assessment and the penalty assessment, then totalling $72,809 (the assessed amount plus interest). That prompted the applicant, on 7 September 2006, to apply to the Supreme Court of South Australia to set aside the first statutory demand pursuant to s 459G of the Corporations Act . That matter was heard on 17 November 2006. Judgment was reserved. Late in the day of 16 November 2006, the applicant filed an application in this Court also pursuant to s 39B of the Judiciary Act seeking that the notice of assessment and the penalty assessment be declared invalid and quashed (matter SAD 262 of 2006). In the Supreme Court proceedings, on 24 January 2007 Judge Withers set aside the first statutory demand because the proceedings in this Court demonstrated a genuine dispute in relation to the debt. His Honour said at [43] of his reasons: The plaintiff filed its summons in the Federal Court challenging the Deputy Commissioner's assessment late on the day before the hearing of this matter. The defendant was not aware of this prior to argument. But for the filing of that summons the plaintiff's application would have been dismissed. 6 In the meantime, on 15 January 2007 the respondent applied by motion in the Federal Court proceedings (matter SAD 262 of 2006) to strike out the application. It contended that, on the statement of claim, the application could not possibly succeed. On 1 February 2007, Finn J dismissed the application with costs. The transcript of the hearing of that day reveals that the matter was dismissed because there was no defence mounted to the motion to have the application struck out. 7 Then round two began.