mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92
Outcome: applied
The respondent submitted further that there was no discrimination in relation to what it called the causation issue and the comparator issue. This terminology picks up what the High Court identified as two of the the three issues involved in determining whether there has been a contravention of the Disability Discrimination Act in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92 at 152, and in particular, [194]. 46 The relevant provision of the Disability Discrimination Act on which the applicant relies is s 15(2) of the Act, which reads as follows: "It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) ... (b) ... (c) by dismissing the employee; (d) by subjecting the employee to any other detriment." That provision requires a reference to s 5(1) of the Act which is headed "Disability discrimination" and provides: "For the purpose of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability." It is also important when looking at relevant provisions of the Disability Discrimination Act to refer to s 15(4) of the Act, which provides: "Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment;" 47 The first question to ask by reference to the provisions of the Disability Discrimination Act , is has the applicant been subjected to a detriment? The answer to that question depends upon the entitlement of the respondent to require the applicant to undergo an examination by a psychiatrist.
Case: Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324
Outcome: referred to
Market Wizard was followed by Moynihan J in Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324.
Case: Re Market Wizard Systems Ltd [1998] 2 BCLC 282
Outcome: cited
A similar issue arose in Re Market Wizard Systems Ltd [1998] 2 BCLC 282. A company marketed a computer system and provided purchasers with daily information. The system analysed that information to generate buy, sell or hold signals in respect of options in each of 12 traded stocks. The signals showed the customer whether they should be neutral, long or short on a given day, and whether they should buy, sell or hold. 19 On behalf of the company it was argued that the system was simply a matter of calculation based on historical data and the updates put in by the customer and was no more than a "sophisticated and technologically based 'calculator'". Carnwath J in the English High Court rejected this argument (at [35]). In his Lordship's view, the argument might have had some substance if the program only provided a convenient means of extracting and analysing data as to historical movements in the market without offering any interpretation of that information as a guide to future action. The promotional material of the company, however, was inconsistent with the limited function suggested. The whole purpose of the program, as described by its inventor, was directed towards "the use of parabolas in determining the future direction of market price". 20 Market Wizard was followed by Moynihan J in Australian Securities and Investments Commission v Online Investors Advantage Inc [2005] QSC 324. 21 Market Wizard is supportive of the decision in the present case. Indeed, the legislation under consideration in Market Wizard (the Financial Services Act 1986 (UK) Sch 1, Pt II, par 15) was more restrictive than the Corporations Act provision in that it was expressed in terms of giving to investors "advice on the merits of their purchasing, selling, subscribing for or underwriting an investment". As already mentioned, "financial product advice" as defined in s 766B is not limited to recommendations or opinions directed towards any particular transaction or any particular course of action the recipient might have in mind. 22 In the present case there has been, first, an expression of opinion that, in specified circumstances arising from a particular kind of market analysis, trading in a particular way is likely to be profitable. Secondly, there is the provision of technical aids that assist in identifying those circumstances from day to day. The combined effect is the provision of financial product advice within the meaning of the statute. 23 As to the intent element of "financial product advice", there could be no doubt, and the defendants admit, that the statements and conduct of Oxford and Mr Moore could reasonably be regarded as being intended to have the relevant influence; that is to say the objective test of par (b) of the definition is satisfied. 24 I find therefore that Oxford and Mr Moore have contravened ss 911A and 911B of the Corporations Act . 25 Section 12DA(1) of the ASIC Act prohibits conduct in trade and commerce in relation to financial services that is misleading and deceptive or likely to mislead and deceive.
Case: Re Evandale Estates Ltd (Supreme Court of Victoria, June 1962, unreported)
Outcome: cited
In Re Evandale Estates Ltd (Supreme Court of Victoria, June 1962, unreported), Adam J directed an amendment as follows: The adoption and coming into operation of this Scheme of Arrangement shall for the purpose of any Statute of Limitations be an acknowledgement. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.
Case: Re H Craig Pty Ltd (1971-1976) CLC 40-026
Outcome: cited
In Re H Craig Pty Ltd (1971-1976) CLC 40-026, Mitchell J approved of a scheme subject to several minor alterations. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.
Case: Re Investorinfo Limited [2005] FCA 1848
Outcome: cited
In Re Investorinfo Limited [2005] FCA 1848 , Gyles J approved a scheme subject to an alteration that was designed to overcome what his Honour described as "a technicality arising from the drafting of the scheme" (at [8]).
Case: Re Permanent Trustee Co Ltd [2002] NSWSC 1177 ; (2002) 43 ACSR 601
Outcome: cited
In Re Permanent Trustee Co Ltd [2002] NSWSC 1177 ; (2002) 43 ACSR 601 , Barrett J approved a scheme subject to alterations which his Honour described as "peripheral" (at [21]). His Honour stated that the scheme in respect of which approval was sought differed in certain respects from the form of scheme that had been sent to members in accordance with the orders of the court previously made. Barrett J added (at [21]): It is clear, however, that the changes or differences are of a minor and technical kind and that their effect is to improve the smooth working of the scheme. 16 I do not purport to define or circumscribe the circumstances in which the Court may properly exercise the discretion to approve subject to alterations. The circumstances in which the Court may be asked to exercise the power vary. For example, the purpose may be to overcome minor technical errors or oversights present in the scheme as agreed to by the shareholders (see, for example, Re H Craig Pty Ltd ); to bring the scheme as agreed to by them into line with the explanatory statement that was sent to them (see, for example, Re Permanent Trustee Co Ltd ); or to protect creditors (see, for example, Re Evandale Estates Ltd ). The alterations may be suggested by the plaintiff or by the Court. Apparently, however, the plaintiff would be entitled, if faced with alterations on which the Court insisted but to which it did not agree, to withdraw its application for approval.
Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: cited
For an issue estoppel to arise, (1) the same question of fact or law must necessarily have been decided; (2) by a judicial decision that was final; and (3) the parties to the earlier judicial decision or their privies must be the same persons as the parties in which the estoppel is raised; see Kuligowski v Metrobus [2004] HCA 34 (" Kuligowski ") at [21]; Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 (" Blair v Curran ") at 531 532. 47 It is also true that this finding necessarily established the legal foundation or justification for the conclusion which his Honour reached; it was legally indispensable to the conclusion; see Blair v Curran at 531 532.
Case: Carr v Finance Corporation of Australia [1981] HCA 20 ; (1980) 147 CLR 246
Outcome: cited
However, the effect of what was said in Lomas is that under the statutory scheme which relates to opposition proceedings, the decision cannot be said to be final. Because of the nature of opposition proceedings, a decision in an appeal under s 56 of the Act cannot, as a matter of law, finally determine the rights of the parties; see Carr v Finance Corporation of Australia [1981] HCA 20 ; (1980) 147 CLR 246 at 248, 253-254; Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767 at 767 768.
Case: Clinique Laboratories Inc v Luxury Skin Care Brands Pty Limited (2003) 61 IPR 130
Outcome: considered
Lomas was criticised by Gyles J in Clinique Laboratories Inc v Luxury Skin Care Brands Pty Limited (2003) 61 IPR 130 ( "Clinique ") at [10] [13]. His Honour pointed out at [13] that the consequence of the approach stated in Lomas is that a party can oppose registration and, even if unsuccessful on an appeal under s 56 , can then bring expungement proceedings on precisely the same ground. 14 The respondent submitted that it was unnecessary for me to resolve the dilemma posed by the remarks of Gyles J in Clinique . Counsel for the respondent, in support of this submission, relied upon an express finding made by Cooper J at [6] of the decision. 15 There, Cooper J found that the applicant failed to make out its objection on the balance of probabilities. I will deal later in my judgment with the significance of this finding. 21 Here the difficulty is not merely the existence of the debate between the Lomas and Clinique views. The difficulty arises from a recent decision of a Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 (" Woolworths v BP "). 27 In coming to that view his Honour referred to Lomas and to the decision of Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326 (" Torpedoes") in which her Honour applied the "should clearly not be registered" test. Cooper J also referred to the remarks of Gyles J in Clinique at [12] [13] that the question is treated as open. 34 In Clinique , Gyles J recognised that it is a consequence of the reasoning in Lomas and Torpedoes that a party can oppose the registration of a mark and, even if unsuccessful on appeal, can then bring expungement or revocation proceedings based on the same ground as was unsuccessfully relied on in the opposition proceedings. 51 Nevertheless, whilst of course expressing no concluded view, the considerations pointed to by Gyles J in Clinique may well suggest that if the applicant fails at the final hearing on the grounds under ss 42 and 60, it would be appropriate for me to order that the costs of the final hearing, at least in relation to those issues, be paid by the applicant on an indemnity basis. I certify that the preceding fifty one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 31 May 2006 Counsel for the Applicant: Mr R Cobden SC Solicitor for the Applicant: Bennett &amp; Philp Solicitors Counsel for the Respondent: Ms J Baird and Ms L Evans Solicitor for the Respondent: Griffith Hack Date of Hearing: 25 May 2006 Date of Judgment: 31 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/647.html
Case: Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767
Outcome: cited
However, the effect of what was said in Lomas is that under the statutory scheme which relates to opposition proceedings, the decision cannot be said to be final. Because of the nature of opposition proceedings, a decision in an appeal under s 56 of the Act cannot, as a matter of law, finally determine the rights of the parties; see Carr v Finance Corporation of Australia [1981] HCA 20 ; (1980) 147 CLR 246 at 248, 253-254; Computer Edge Pty Limited v Apple Computer Inc [1984] HCA 47 ; (1984) 54 ALR 767 at 767 768.
Case: Cowa Company Limited v NV Organon (2005) 223 ALR 27
Outcome: referred to
Lomas and Torpedoes were followed by Lander J in Cowa Company Limited v NV Organon (2005) 223 ALR 27 although his Honour had reservations about the test to be applied; see [123] [141]. Nevertheless, he considered that he was bound to follow the decisions that had applied the test stated in Lomas.
Case: Imperial Chemical Industries PLC v EI Dupont De Nemours &amp; Co [2002] AIPC 91-818
Outcome: referred to
The same approach has been applied in patent proceedings; see Imperial Chemical Industries PLC v EI Dupont De Nemours &amp; Co [2002] AIPC 91-818 at [6] [7]. 42 In trade mark proceedings this approach seems to me to follow from the scheme of the Act and in particular from ss 88(1) and (2). Those subsections grant to an aggrieved person the right to seek rectification of the Register on "any grounds on which the registration of the trade mark could have been opposed under Division 2 of Part 5".
Case: Kuligowski v Metrobus [2004] HCA 34
Outcome: cited
For an issue estoppel to arise, (1) the same question of fact or law must necessarily have been decided; (2) by a judicial decision that was final; and (3) the parties to the earlier judicial decision or their privies must be the same persons as the parties in which the estoppel is raised; see Kuligowski v Metrobus [2004] HCA 34 (" Kuligowski ") at [21]; Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 (" Blair v Curran ") at 531 532. 39 Whether or not a decision in opposition proceedings can give rise to an issue estoppel must depend upon the proper construction of the statutory language and the necessary implications which flow from it; Kuligowski at [25], [36] and [37].
Case: Reading Australia Pty Limited v Australian Mutual Provident Society [1999] FCA 718
Outcome: referred to
Notwithstanding my doubts, I was persuaded by the submissions of the parties that the factors to which Branson J pointed in Reading Australia Pty Limited v Australian Mutual Provident Society [1999] FCA 718 , favoured the making of an order. 19 However, in light of an issue which emerged in the arguments of counsel on the hearing of the preliminary questions, I have serious doubts about whether the order should have been made. I appreciate that the issue which emerged was not apparent when the orders were made and no criticism is directed at counsel or their instructing solicitors. 20 It is simply an example of the problems which are sometimes thrown up by the desire to shorten proceedings through the mechanism of an order under O 29 r 2.
Case: Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326
Outcome: referred to
In coming to that view his Honour referred to Lomas and to the decision of Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901 ; (2003) 132 FCR 326 (" Torpedoes") in which her Honour applied the "should clearly not be registered" test. Cooper J also referred to the remarks of Gyles J in Clinique at [12] [13] that the question is treated as open. 34 In Clinique , Gyles J recognised that it is a consequence of the reasoning in Lomas and Torpedoes that a party can oppose the registration of a mark and, even if unsuccessful on appeal, can then bring expungement or revocation proceedings based on the same ground as was unsuccessfully relied on in the opposition proceedings. 36 Lomas and Torpedoes were followed by Lander J in Cowa Company Limited v NV Organon (2005) 223 ALR 27 although his Honour had reservations about the test to be applied; see [123] [141]. Nevertheless, he considered that he was bound to follow the decisions that had applied the test stated in Lomas.
Case: Woolworths Limited v BP plc [2006] FCAFC 52
Outcome: considered
Here the difficulty is not merely the existence of the debate between the Lomas and Clinique views. The difficulty arises from a recent decision of a Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 (" Woolworths v BP "). 22 In Woolworths v BP , Sundberg and Bennett JJ (Black CJ dissenting) considered that the question of the standard of proof to be applied by a single judge in considering an appeal under s 56 of the Act is an open question. Their Honours said at [84] that it was appropriate for this question to be considered by a Full Court and granted leave to appeal. 23 The standard of proof to be applied in an appeal against an unsuccessful opposition is central to the question of whether an estoppel arises in proceedings such as the present one. It goes to the nature of the opposition proceeding, the structure of the Act and the question of whether the decision on the appeal is final or interlocutory. 24 Thus it would appear that a central plank on which the estoppel question turns will be determined in the not too distant future, by a Full Court. That determination will of course be binding upon me. 40 Two Full Courts have stated in plain terms that if opposition proceedings fail, the validity of the trade mark can then be fully explored in revocation proceedings; see Lomas at [18] [19] and Woolworths v BP at [55].
Case: WAGP of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276
Outcome: cited
The absence of a response by her husband in my opinion was not 'information' but rather an observation and part of the reasoning process about the deficiency in the evidence before the Tribunal: see WAGP of 2002 v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] - [29] .
Case: Beecham Group Ltd v Bristol-Myers Co [1979] VR 273
Outcome: cited
To relax the conclusiveness of the affidavit of documents a rule was introduced allowing the court to order specific discovery by requiring a party to state whether one or more specified documents are or have been in his possession or power: White v Spaffard &amp; Co [1901] 2 KB 241; Weir v Greening [1957] VR 296, 298. In the Federal Court the rule is O 15, r 8. The requirements to be met by a party applying for particular discovery were considered in Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, 278-282. In substance, to justify the making of an order the party applying must identify the document in issue and satisfy the court that there is a "reasonable ground for being fairly certain" that the document is relevant and is (or has been) in his opponent's possession.
Case: British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] 1 KB 369
Outcome: cited
It was once a fundamental principle that a party could not be ordered to produce a document unless he (or she) had directly or indirectly admitted it to be in his possession and that it was relevant: Daniell's Chancery Practice (7 th ed, 1901) 1565; Storey v Lennox (1836) 1 Keen 341. A party's oath that a particular document was irrelevant (which would include an indirect statement imputed from the omission of a document from an affidavit of documents) was conclusive unless the court was reasonably satisfied from certain definite sources that the party had in his possession other relevant documents: Lyell v Kennedy (1884) 27 Ch D 1, 20. The sources to which the court could turn were the affidavit of documents itself ( Hall v Truman, Hanbury, &amp; Co (1885) 29 Ch D 307, 319), a document referred to in the affidavit ( Lyell v Kennedy ), the pleadings ( Jones v Monte Video Gas Co (1880) 5 QBD 556) and documents referred to in answers to interrogatories. British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] 1 KB 369 extended the sources to include any that contained an admission of the existence of a discoverable document.
Case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Outcome: cited
Generally speaking, it was not possible to file a contentious affidavit to show that a party had not discovered all relevant documents: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, 61. The only remedy which a party had in order to show that an adversary's affidavit of documents was deficient was to obtain leave to administer interrogatories for that purposes: Jones v Monte Video Gas Co (1880) 5 QBD 556, 558; Newall v Telegraph Construction Company (1866) LR 2 Eq 756. The circumstances in which leave to administer interrogatories would be allowed were considered in Hall v Truman, Hanbury, &amp; Co (1885) 29 Ch D 307. When the court was satisfied that a party might have other relevant documents, it could order a further affidavit confined to the particular documents believed to have been omitted ( Vyse v Foster (1872) LR 13 Eq 602) or a further general affidavit ( Saull v Browne (1874) LR 17 Eq 402).