mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1
Outcome: cited
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].
Case: Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502
Outcome: cited
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].
Case: Lomas v Winton Shire Council [2002] FCAFC 413
Outcome: applied
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].
Case: Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130
Outcome: cited
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].
Case: Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557
Outcome: cited
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].
Case: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 ; (2008) 168 FCR 410
Outcome: applied
The Council has sought to outflank these decisions by contending that Mr Wilkshire's proceeding can, in the circumstances, properly be characterised as an abuse of process. The power of the Court to prevent such abuses extends beyond "the strict limits" of res judicata , issue estoppel and the Anshun doctrine: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 ; (2008) 168 FCR 410 at [37] - [38] . A considerable body of material was put on to support the contention that Mr Wilkshire was engaging in "unjust harassment of the Council ... with respect to the subject matter of this litigation". 50 Given the view I have already taken of the prospects of this application, I do not intend to enter upon the controversies raised above. The undertakings 51 The final ground, which only came into sharp focus at the hearing of the motion, is a foreshadowed defence to Mr Wilkshire's application. It is founded on the consent undertakings noted with the consent orders. It is appropriate to reiterate their terms at this point: 4 The applicant undertakes to the Respondent as follows: (a) not to interfere in any way with the Respondent's application to register trade mark number 942740 (the "Respondent's mark"); and (b) not to threaten the Respondent, any of the Respondent's licenses (whether current or future) or any other person with any form of action (including action for trade mark infringement under the Trade Marks Act 1995 , passing off, breach of section 52 or 53 of the Trade Practices Act 1974 or related State and Territory Fair Trading Legislation and/or a breach of copyright) in relation to the use of the Respondent's mark. This undertaking applies to existing and future use of the Respondent's mark in relation to all goods and services. For the avoidance of doubt, nothing in this undertaking restricts the Applicant's right to use trade mark no. 847,229 in relation to the services for which he is registered.
Case: Nokia Corporation v Liu [2008] FCAFC 138
Outcome: applied
As I will indicate below, the undertakings are contractual in character and, no less so than the Court orders, they are binding on the parties. In construing the consent orders and the undertakings, like principles are applied and in particular, evidence of the surrounding circumstances, or context, is admissible: see Nokia Corporation v Liu [2008] FCAFC 138 at [29] - [31] . 53 I earlier noted that Mr Wilkshire's legal advisers accepted an offer of compromise made by the Council's solicitors on 9 March 2007. While there may be an outstanding question whether that compromise included a non-disclosure undertaking, there is no doubt that it included the above two undertakings. Whether or not Mr Wilkshire's advisers exceeded their authority in acting as they did is not presently relevant. There can be no doubt that, in the circumstances, they acted within their ostensible authority to compromise the action. Equally there is no doubt that Mr Wilkshire was prepared to accept the compromise in the form offered in the letter of 27 February 2007 from the Council's lawyers. It was, in substance, what is contained in the consent orders and undertakings. Both the evidence and legal principle point in one direction. Whatever grounds for complaint (if any) Mr Wilkshire has against his advisers, he was bound by the consent orders and he remains bound by his contractual undertaking. 54 The remaining question is whether, by the undertakings given, he contractually bound himself not to initiate the present proceedings.
Case: Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641
Outcome: applied
The Council contends that cl 4(b) created an estoppel by convention which barred Mr Wilkshire for instituting the present proceeding. I have some difficulty in understanding how this species of estoppel (on which see generally Handley, Estoppel by Conduct and Election , Ch 8 (2006)) in this setting assists the Council beyond the assistance which it properly can derive from the construction of the undertakings themselves in their setting. The context does provide quite clear indications as to how the language of the undertakings should be interpreted but that conclusion is arrived at by well accepted processes of interpretation. It does not in this matter seem to suggest that the parties adopted some assumption as the "conventional basis" upon which they entered into their compromise and from which Mr Wilkshire should not now be allowed to depart: Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58 ; (1937) 59 CLR 641 at 657.
Case: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
Outcome: cited
As Allsop P indicated in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [3] : ... the identification of ambiguity is not a precondition for examining contextual and background material otherwise legitimate to examine in furtherance of the construction and interpretation of a written contract. 60 It is in my view quite clear that considered together with the consent orders (which, unfavourably to Mr Wilkshire, brought to an end the proceeding that was then on foot), the manifest intent of the two undertakings was to (a) secure that Mr Wilkshire would not interfere with the Council's obtaining registration of its mark (cl 4(a)); and (b) thereafter he would not interfere with the Council's use and enjoyment of its registered mark, directly or indirectly (cl 4 (b)). Likewise the manifest intent of the consent orders, when considered in the context of the undertakings, was not simply to bring to an end a proceeding of "a quasi summary nature". Put shortly, the combined effect of the orders and undertaking was that their dispute over the mark was to be at an end then and thereafter. Order 1 and Undertaking 4(a) were to secure for the Council its registered mark vis-&agrave;-vis Mr Wilkshire; Undertaking 4(b) was to secure the use and enjoyment of that registered mark undisturbed by actions, threatened or initiated, by Mr Wilkshire. In aggregate the parties' compromise agreement was more than the bare compromise on an opposition appeal. In this setting "not to threaten ... with any form of action" manifestly was intended to comprehend "the initiation" of an action. Similarly any action in relation "to the use of" the registered mark encompassed an action in relation to its use as a registered mark. 61 In its setting cl 4(b) is not in my view to be construed as some adaptation of the s 129 "threat action". Rather, it can, and should be, interpreted as I have indicated above. As such, it could be relied upon as a complete defence to the prosecution of the present application. It provides yet another basis for summary judgment against him under s 31A of the Federal Court of Australia Act .
Case: Maguire v Leather [2007] QSC 164
Outcome: cited
Atkins , of course, refers to, in its English origins, an English practice whereby it is traditionally the role of junior counsel to furnish an advice on evidence. In Australia, that certainly can be so but especially in more recent times, both solicitors themselves, as well as senior counsel, have an involvement in the furnishing of an advice on evidence. An example of the difficulties which can be encountered where an advice on evidence is not prepared is offered by Fryberg J in a Queensland case, Maguire v Leather , BC200705438, given on 13 July 2007, [2007] QSC 164 , see especially para 71.
Case: Bassett v Host (1982) 1 NSWLR 206
Outcome: considered
In terms of general principle, it seems to me that an appropriate starting point is a decision given in the New South Wales Court of Appeal, Bassett v Host (1982) 1 NSWLR 206. That case was the subject of a subsequent appeal to the High Court, Host v Bassett (1983) 57 ALJR 681 , in which an appeal was dismissed. The passages from which I quote now from the judgments in the New South Wales Court of Appeal were not the subject of express reference in the High Court, but there is nothing in the High Court's judgment, which was confined to the more narrow issues that arose in that case, that calls into question the passages concerned.
Case: Host v Bassett (1983) 57 ALJR 681
Outcome: cited
In terms of general principle, it seems to me that an appropriate starting point is a decision given in the New South Wales Court of Appeal, Bassett v Host (1982) 1 NSWLR 206. That case was the subject of a subsequent appeal to the High Court, Host v Bassett (1983) 57 ALJR 681 , in which an appeal was dismissed. The passages from which I quote now from the judgments in the New South Wales Court of Appeal were not the subject of express reference in the High Court, but there is nothing in the High Court's judgment, which was confined to the more narrow issues that arose in that case, that calls into question the passages concerned.
Case: Betts v Whittingslowe (1944) SASR 163
Outcome: considered
The circumstances in which witnesses can be called even after a party has closed its case are many and varied. Some singular examples show just how far the extent of the discretionary power to permit the calling of a witness after the closing of a case can reach. In that regard, note might usefully be taken of two South Australian cases. The first, Betts v Whittingslowe (No. 1) (1944) SASR 163 is a decision of then Chief Justice, Napier CJ. His Honour, at page 163, held that: Until the issues of fact and law have been finally determined by verdict or judgment, a trial judge has an inherent right to open a trial or to admit fresh evidence. 20 In the course of his judgment the Chief Justice, at page 163, did observe that: A trial should not be reopened merely to permit a party to fortify evidence adduced in the first instance by calling witnesses who might easily have been made available if due diligence had been shown.
Case: Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424
Outcome: considered
More recently in time, Zelling J, then an acting justice of the South Australian Supreme Court, in Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424 , also had occasion to consider the subject of the calling of a witness after the closing of a case. The circumstances there were rather singular in the sense that it became apparent that counsel in that case had not appreciated that a particular issue was material to the determination of the proceeding before the court. The application was made after the close of the case. His Honour held that a judge had power to reopen a case and to do so even in respect of a case where he had given judgment, but before orders had been sealed, if the interests of justice required such a course. His Honour counselled that such applications are to be kept in strict bounds. He added at page 425: Justice, however, is a protean concept and has moreover to be administered having regard to the rights and interests of both sides so that the application of the admitted jurisdiction to a given set of facts is not free of difficulty. There must be on the cases some specific cause which triggers the use of the remedial jurisdiction.
Case: Cropper v Smith (1884) 26 Ch D 700
Outcome: cited
More recently in time the High Court has had occasion in State of Queensland v JL Holdings (1996/1997) [1997] HCA 1 ; 189 CLR 146 to consider the place of case management systems in the obtaining of justice according to law. Their Honours cite two authorities which, in my opinion, have pertinence in the context of the present application. At page 152 their Honours cite with approval what they describe as a well known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710, where his Lordship said: Now, I think it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace. 24 Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.
Case: Sali v SPC Limited (1993) 67 ALJR 841
Outcome: cited
Their Honours also cite at pages 153 and 154 a passage from an earlier High Court decision Sali v SPC Ltd (1993) 67 ALJR 841 at 849, where in that case Toohey and Gaudron JJ had observed: The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions of the court's lists with the consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. 24 Their Honours continue in Queensland v JL Holdings at page 154 that they did not regard the passages that they cited from Sali v SPC as sanctioning any departure from Cropper v Smith and accepted in cases such as Clough and Rogers v Frog (1974) 48 ALJR 481. They continue, by way of observation, that: Sali v SPC was a case concerning the refusal of an adjournment in relation to which proper principles of case management have a particular relevance. And I considered they had just such relevance in refusing the application made by Olivaylle in December.