mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pioneer Computers Australia Pty Limited v Pioneer KK (2009) 176 FCR 300
Outcome: cited
issues raised in the appeal are to be considered afresh on the basis of the evidence before this Court, notwithstanding that this differs from the evidence before the delegate ( Pioneer Computers Australia Pty Limited v Pioneer KK (2009) 176 FCR 300 at [23]). The respondent has filed a notice of appearance, but has indicated that it does not propose to take any further action in relation to the appeal. That is, the respondent submits to any order of the Court save as to costs. Mr Shen is the sole director and shareholder of Solar International Proprietary Limited, trading as Solar Sports. He says that he is responsible for the day to day business activities of the company, and has authorised the company to use the trade mark. In his evidence, Mr Shen annexes copies of business records of the company, including commercial invoices, bills of lading, shipment advice, and tax invoices, relating to two shipments of footwear within the relevant period. The documents annexed to the affidavit establish that the first shipment was purchased on 1 May 2006, which led to sale of footwear under the trade mark. Those goods were sold under the trade mark in the period from 1 August 2006 to 28 February 2007. It is apparent that that period, in its totality, was within the relevant period. I also note that the goods the subject of that shipment were sold to customers in New South Wales, Queensland, and the Australia Capital Territory.
Case: Woolly Bull Enterprises Pty Limited v Reynolds [2001] FCA 261 ; (2001) 107 FCR 166
Outcome: discussed
applicant must establish both ' use ' and ' use in good faith of the trade mark ' during the relevant period. As Drummond J pointed out in Woolly Bull Enterprises Pty Limited v Reynolds [2001] FCA 261 ; (2001) 107 FCR 166 at [14] , an applicant for removal must show that ' at no time during [the relevant period]' has there been use. It follows, as his Honour pointed out, that an opponent is entitled to rebut the allegation by proving even a single use on just one occasion during the three year period, such use being in good faith. At [16], his Honour expressed the view that the expression ' use in good faith ', has a well understood meaning in this context: namely real, as opposed to token, use in a commercial sense. I am satisfied that the applicant has demonstrated real commercial use of the trade mark by the company. The evidence also establishes more than one act of use during the relevant period, were it necessary to do so. I am satisfied that the use was authorised by the applicant. That is sufficient for the purposes of s 92(4)(b) and s 100(3)(a). The evidence establishes use during the relevant period of the trade mark on footwear. The registration was for a class of goods beyond that description. The removal application should therefore not succeed insofar as it relates to footwear. The applicant has not sought to maintain the registration for the goods beyond footwear. The applicant does not oppose the removal of the trade mark insofar as it relates to those other goods.
Case: Brittingham v Williams [1932] VLR 237
Outcome: cited
appellant has submitted, in essence, that the absence of reasons given by the learned Federal Magistrate for refusing to go behind the judgment gave rise to an error of law. He has cited as authority Petitt v Dunkley (1971) 1 NSWLR 376, a decision of the New South Wales Court of Appeal. However, with respect, Petitt is in no way comparable to the case which was before her Honour, or the case before me. In the present case there is a history of litigation demonstrating that there is a judgment debt upon which the bankruptcy notice, and subsequently the creditor's petition, are founded. It was clear to her Honour, as it is clear to me, that the appellant has had numerous opportunities in Court, across both Federal and State jurisdictions, through multiple actions, and through multiple levels of appeal, to establish flaws in either the judgment debt or the process which has resulted in the judgment debt being enforceable against him. He has been consistently unsuccessful. While as a general rule it is desirable to give reasons for a decision, to paraphrase Cussen ACJ in Brittingham v Williams [1932] VLR 237 at 239, a case may 'be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person'. In my view, this is such a case with respect to this ground of appeal.
Case: Connecticut Fire Insurance Co v Kavanagh [1892] AC 473
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257
Outcome: cited
appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act , the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo , Padagas and CSR cited earlier in this judgment as authority for this proposition.
Case: French v Wilcox [2001] FCA 95
Outcome: followed
at the subsequent hearing before Rimmer FM the appellant was at liberty to raise issues relevant to the contents of the National Personal Insolvency Index so far as applied to him, including for example details of any debt agreement in relation to the debt on which the creditor relies. The purpose of O 77 r 19(3) Federal Court Rules (and r 31.06(3) Federal Magistrates Court Rules) would seem to be to provide the court with evidence that there is no debt agreement in force which would preclude a creditor from proceeding further with a creditor's petition, and to provide evidence of any other proceedings in bankruptcy which might have a bearing on the making of a sequestration order ( French v Wilcox [2001] FCA 95 at [34] per Lee and Carr JJ). In this case the appellant did not raise any issues of this nature before her Honour and accordingly her Honour was entitled to make the findings she did. A similar issue was raised in French v Wilcox where an affidavit under O 77 r 19(3) was sworn on 21 July 2000 and, after the matter came before the court on that date, the hearing of the creditor's petition was adjourned to 30 August 2000 when the primary judge made a sequestration order. On appeal Lee and Carr JJ said: 'Likewise, his Honour had an index search sworn on 21 July 2000. In the absence of any suggestion from the appellant that any proceedings in bankruptcy had taken place between 21 July 2000 and 30 August 2000, he was, in our opinion, entitled to assume that no such proceedings (including the making of any debt agreement) had taken place.' (at [37]) These grounds of appeal are referable to O 77 r 19(4) Federal Court Rules , mirrored in r 31.06(4) Federal Magistrates Court Rules. As pointed out by Lee and Carr JJ in French v Wilcox [2001] FCA 95 at [35] . 'The evident purpose of rule 19(4) is to provide a means of proving what is required by s 52(1)(c) of the Act, ie the fact that the debt or debts on which the petitioning creditor relies is or are still owing.' In written submissions, the appellant claims that the respondents failed to file an affidavit of final debt sworn as soon as practicable before the hearing date stating that the debt relied upon is still owing and the amount of the debt. In the absence of that affidavit, there was no material before the Court to justify a finding of a final debt or the making of a sequestration order. The circumstances of this case bear interesting similarities to those in French v Wilcox . In the absence of any real indication that the debt had been paid when the matter was before her Honour on 26 August 2005, it was open to her Honour to infer that the debt was still owing. The appellant has not brought any evidence before me which would in any way negate that finding. I reject the submission by the appellant that there was no material before Rimmer FM to justify a finding of a final debt or the making of a sequestration order. Both grounds of appeal raise issues of finality of decision. It is convenient to consider these grounds together. Original Notice of Appeal Ground 3
Case: Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: Grey v Manitoba and North Western Railway Co of Canada (1897) AC 254
Outcome: applied
general rule is clear. It has been a principle of the common law for many years. Lord Hobhouse, delivering the judgment of the Privy Council, articulated the rule in Grey v Manitoba and North Western Railway Co of Canada (1897) AC 254 at 267 as follows: 'The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the Courts below. As the matter stands they have not been touched by the Courts below... (Their Lordships) confine themselves to deciding the issues which the Courts below were invited by the plaintiffs to decide, namely, whether there can be a judicial sale, and what it is that the receiver of the revenues of the division is entitled to receive.'
Case: Gomez v MIMIA (2002) 190 ALR 543
Outcome: cited
principle has also been applied in many decisions of the Federal Court, including Iyer v MIMIA [2000] FCA 1788 and Gomez v MIMIA (2002) 190 ALR 543. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
second issue is that it is very clear that the application to set aside the bankruptcy notice was finally decided by the Deputy District Registrar on 13 May 2005. In the context of r 31.04 Federal Magistrates Court Rules , the concept of finality is referable to whether the decision in relation to the application to set aside the bankruptcy notice finally determined the rights of the applicant or the respondent in favour of either of them. A similar test applies in a number of contexts, for example: &#8226; interpreting the meaning of 'final judgment or final order' in s 40(1)(g) Bankruptcy Act (see, for example, the test articulated by Lord Esher MR in In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512 at 516); and &#8226; distinguishing a 'final judgment' from an 'interlocutory judgment' (see, for example, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 440 and Windeyer J at 443).
Case: In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512
Outcome: cited
second issue is that it is very clear that the application to set aside the bankruptcy notice was finally decided by the Deputy District Registrar on 13 May 2005. In the context of r 31.04 Federal Magistrates Court Rules , the concept of finality is referable to whether the decision in relation to the application to set aside the bankruptcy notice finally determined the rights of the applicant or the respondent in favour of either of them. A similar test applies in a number of contexts, for example: &#8226; interpreting the meaning of 'final judgment or final order' in s 40(1)(g) Bankruptcy Act (see, for example, the test articulated by Lord Esher MR in In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512 at 516); and &#8226; distinguishing a 'final judgment' from an 'interlocutory judgment' (see, for example, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 440 and Windeyer J at 443).
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: applied
recently, the High Court explained in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.'