mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019
Outcome: followed
Section 17C sets out those steps which must be undertaken before an application may be " made " for confirmation. For the purposes of s 17C, it is considered that an application for confirmation of a scheme is " made " at that point in time when a hearing is held which seeks confirmation and not at that point in time when proceedings are filed with this Court: Re Insurance Australia Ltd [2004] FCA 524 at [30] [37] per Lindgren J, [2004] FCA 524 ; 139 FCR 450 at 458 9. See also: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019 at [81] .
Case: Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority [1999] FCA 1779
Outcome: followed
The manner in which this Court exercises the discretion conferred by s 17F(1) is informed and assisted by the views expressed by the Australian Prudential Regulation Authority. This Court has long recognised the role played by the Authority and the reliance placed by the Court upon its review of the proposed scheme and its assessment as to whether or not it should oppose an order seeking confirmation. Albeit in the comparable context of a transfer under Part 9 of the Life Insurance Act 1995 (Cth) , in Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority [1999] FCA 1779 , Mathews J observed: [28] It is relevant to note that APRA, which operates as something of a watchdog in relation to transfers under Pt 9 of the Act, had no objection to the confirmation of the scheme. Nor did APRA arrange for an actuarial report on the scheme, as it is entitled to do under s 192 of the Act. It can be inferred that APRA regarded the reports furnished by the applicants as adequate. ... Like comments have also been made in other cases: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 at [23] , [2000] FCA 1259 ; 104 FCR 37 at 40 per Katz J. See also: Application of Zurich Insurance Company and Converium Limited [2003] FCA 1519 at [4] per Hely J; Application of Advance Life Insurance Limited (Unreported, FCA, Sheppard J, 18 February 1997).
Case: PMI Indemnity Ltd [2005] FCA 1842
Outcome: followed
The discretion conferred by s 17F is conferred in general terms and does not specify any criteria to be satisfied. It must, however, be a discretion exercised in a manner which promotes the objects of the Act, including the protection of the interests of policy holders in ways consistent with " the continued development of a viable, competitive and innovative insurance industry ". A " critical consideration " is " whether affected policyholders will be detrimentally affected by the implementation of the scheme ": PMI Indemnity Limited (No 2) [2005] FCA 1842 at [24] per Lindgren J. 14 Section 32 of the 1973 Act, it should further be noted, provides that the Authority may also determine " prudential standards " that must be complied with. Of immediate relevance to the present proceedings are three such standards, namely: (i) Prudential Standard GPS 110 -- which deals with " Capital Adequacy " and aims to ensure that the security of policy holder obligations of all insurers is established at an appropriate level by requiring that each general insurer maintain at least a minimum amount of capital; (ii) Prudential Standard GPS 310 -- which deals with audit and actuarial reporting and outlines the roles and responsibilities of a general insurer's Approved Actuary; and (iii) Prudential Standard GPS 410 -- which deals with the transfer and amalgamation of the insurance business of a general insurer. Also of relevance is: (iv) A " Prudential Practice Guide (Draft) " which deals with " Capital Adequacy " and " Capital Management ". 15 The " Summary of the Scheme " in the present proceedings was approved by the Australian Prudential Regulation Authority and sets out the effect of the Scheme as follows: Summary of scheme The following is a summary of the scheme: (a) All of the rights, liabilities and obligations of BIC under policies issued or underwritten by BIC in the conduct of BIC's Australian insurance business will be transferred to A&amp;G and become rights, liabilities and obligations of A&amp;G. BIC will be released and discharged from these liabilities and obligations and will cease to operate an insurance business in Australia. (b) A cash amount equal to the value of the liabilities assumed by A&amp;G (net of reinsurance and third party recoveries) will be transferred from BIC to A&amp;G. Reinsurance treaties held for the benefit of BIC will be assigned to A&amp;G. (c) Except for A&amp;G being substituted for BIC as insurer, the transfer will not result in any change to policy benefits or policy terms and conditions under policies issued or underwritten by BIC. (d) The rights, benefits, obligations and liabilities of holders of policies issued by BIC in Australia will be the same as if those policies had been issued or underwritten by A&amp;G instead of BIC. Claims under such policies are to be made to A&amp;G, instead of BIC. (e) BIC will bear the costs and expenses relating to the transfer and the scheme. (f) The transfer will take effect on the first business day after the date on which the scheme is confirmed by the Court.
Case: Re Insurance Australia Ltd [2004] FCA 524
Outcome: followed
Section 17C sets out those steps which must be undertaken before an application may be " made " for confirmation. For the purposes of s 17C, it is considered that an application for confirmation of a scheme is " made " at that point in time when a hearing is held which seeks confirmation and not at that point in time when proceedings are filed with this Court: Re Insurance Australia Ltd [2004] FCA 524 at [30] [37] per Lindgren J, [2004] FCA 524 ; 139 FCR 450 at 458 9. See also: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019 at [81] .
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259
Outcome: considered
The manner in which this Court exercises the discretion conferred by s 17F(1) is informed and assisted by the views expressed by the Australian Prudential Regulation Authority. This Court has long recognised the role played by the Authority and the reliance placed by the Court upon its review of the proposed scheme and its assessment as to whether or not it should oppose an order seeking confirmation. Albeit in the comparable context of a transfer under Part 9 of the Life Insurance Act 1995 (Cth) , in Colonial Portfolio Services Ltd v Australian Prudential Regulation Authority [1999] FCA 1779 , Mathews J observed: [28] It is relevant to note that APRA, which operates as something of a watchdog in relation to transfers under Pt 9 of the Act, had no objection to the confirmation of the scheme. Nor did APRA arrange for an actuarial report on the scheme, as it is entitled to do under s 192 of the Act. It can be inferred that APRA regarded the reports furnished by the applicants as adequate. ... Like comments have also been made in other cases: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 at [23] , [2000] FCA 1259 ; 104 FCR 37 at 40 per Katz J. See also: Application of Zurich Insurance Company and Converium Limited [2003] FCA 1519 at [4] per Hely J; Application of Advance Life Insurance Limited (Unreported, FCA, Sheppard J, 18 February 1997).
Case: .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521
Outcome: cited
It is clear that regard must be had to the relevant conduct as a whole, and in context. See generally Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45. The question whether a representation made by a person to the public, or a section of it, would be likely to mislead or deceive must be answered without regard to whether that person intends to mislead or deceive. It is not a question of whether, if the person makes these representations, he or she would be acting honestly and reasonably. It is simply a question of whether potential members of the class to whom the representations are to be addressed (which include the astute and the gullible, the intelligent and the not so intelligent, and the well educated and the poorly educated) are at serious risk of being misled or deceived: see .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12] [15] and National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369.
Case: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
It is clear that regard must be had to the relevant conduct as a whole, and in context. See generally Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45. The question whether a representation made by a person to the public, or a section of it, would be likely to mislead or deceive must be answered without regard to whether that person intends to mislead or deceive. It is not a question of whether, if the person makes these representations, he or she would be acting honestly and reasonably. It is simply a question of whether potential members of the class to whom the representations are to be addressed (which include the astute and the gullible, the intelligent and the not so intelligent, and the well educated and the poorly educated) are at serious risk of being misled or deceived: see .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12] [15] and National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369.
Case: Dunn v Australian Society of Certified Practising Accountants (1996) ATPR |P41-461
Outcome: referred to
Mr Dunn is a qualified accountant. As previously indicated, he is not a member of the applicant. Nor is he a member of either of the other umbrella organisations of accountants. He describes himself as "proudly independent". He has no interest in joining any such organisation, and he exhibits barely disguised contempt for them. He has long been engaged in challenging their right to hold themselves out as having some special expertise which he lacks. See, for example, Dunn v Australian Society of Certified Practising Accountants (1996) ATPR |P41-461; Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193 ; Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199 ; and Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651.
Case: Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193
Outcome: referred to
Mr Dunn is a qualified accountant. As previously indicated, he is not a member of the applicant. Nor is he a member of either of the other umbrella organisations of accountants. He describes himself as "proudly independent". He has no interest in joining any such organisation, and he exhibits barely disguised contempt for them. He has long been engaged in challenging their right to hold themselves out as having some special expertise which he lacks. See, for example, Dunn v Australian Society of Certified Practising Accountants (1996) ATPR |P41-461; Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193 ; Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199 ; and Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651.
Case: Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199
Outcome: referred to
Mr Dunn is a qualified accountant. As previously indicated, he is not a member of the applicant. Nor is he a member of either of the other umbrella organisations of accountants. He describes himself as "proudly independent". He has no interest in joining any such organisation, and he exhibits barely disguised contempt for them. He has long been engaged in challenging their right to hold themselves out as having some special expertise which he lacks. See, for example, Dunn v Australian Society of Certified Practising Accountants (1996) ATPR |P41-461; Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193 ; Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199 ; and Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651.
Case: Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651
Outcome: referred to
Mr Dunn is a qualified accountant. As previously indicated, he is not a member of the applicant. Nor is he a member of either of the other umbrella organisations of accountants. He describes himself as "proudly independent". He has no interest in joining any such organisation, and he exhibits barely disguised contempt for them. He has long been engaged in challenging their right to hold themselves out as having some special expertise which he lacks. See, for example, Dunn v Australian Society of Certified Practising Accountants (1996) ATPR |P41-461; Dunn v Australian Society of Certified Practising Accountants [1996] FCA 1193 ; Dunn v Australian Society of Certified Practising Accountants [1998] FCA 1199 ; and Dunn v Australian Society of Certified Practising Accountants [1999] FCA 651.
Case: Federation of Australian Accountants Inc v Australian Society of Accountants [1988] FCA 101
Outcome: discussed
Woodward J's decision was upheld on appeal to the Full Court: Federation of Australian Accountants Inc v Australian Society of Accountants [1988] FCA 101. Lockhart J with whom Northrop J agreed) described, and dismissed, the central argument raised by the Federation on appeal in these terms (at 10 11): "The principal argument on the appeal was that the absence from the advertisement of a stated and specific link between the initials "CPA" and the Society was fatal to the Society's case, and that his Honour's findings to the contrary were erroneous. ... The point which resolves the central issues in this appeal is that the letters CPA have plainly acquired a special and distinctive meaning in relation to the accountancy profession in Australia. It is plain that the opening paragraph of the advertisement is likely to mislead students and others wishing to obtain accountancy qualifications into believing that they can obtain the Society's CPA qualification from the Federation."
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Outcome: cited
The principles which govern s 52 are well established. When determining whether particular conduct was, or is, likely to mislead or deceive it is unnecessary to prove that anyone was actually misled or deceived: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198. However, evidence that particular individuals have been misled or deceived is admissible, and may be persuasive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87. The test is objective, and the Court must determine the question for itself: Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Finally, conduct is likely to mislead or deceive if there is a real and not remote possibility that it will do so. It is not necessary to establish that the degree of likelihood exceeds 50%: Global Sportsman at 87.
Case: Mobileworld Communications Pty Ltd v Q &amp; Q Global Enterprise (2003) 61 IPR 98
Outcome: cited
Much the same can be said about Mr Dunn's use of the phrase "Certified Public Accountant". That term closely resembles the designation "Certified Practising Accountant". The visual and aural similarities are real. It is clearly established that the use of different but similar words and phrases can constitute misleading or deceptive conduct. For example, in Mobileworld Communications Pty Ltd v Q &amp; Q Global Enterprise (2003) 61 IPR 98 the Court was concerned with the use by one business of the name "Crazy Ron's". Allsop J held that that name was misleading or deceptive because of its similarity to the pre-established trade name "Crazy John's". His Honour further concluded that disclaimers would not be sufficient, and that injunctive relief was appropriate. 37 Finally, the use of the term "Certified Public Accountant" would be likely to mislead because it suggests that there is some organisation that awards that qualification, and that Mr Dunn has satisfied the requirements of that organisation in order to acquire that status. In fact, the evidence reveals that there is no such organisation. Mr Dunn has not undertaken any continuing education of the kind that the applicant requires in order to grant certification, and he has not undertaken any examinations which are a prerequisite to the designation in question. He may be a public accountant holding tertiary qualifications. However, he is not a "Certified Public Accountant" because no professional body or organisation has conferred that title upon him. 38 In my opinion, the applicant is entitled to the injunctive relief sought under s 80 of the Trade Practices Act . Mr Dunn acknowledged in his final submissions that, unless restrained, he will use one or other of the expressions "Certified Practising Accountant" or "Certified Public Accountant" in his letterhead. That would amount to a contravention of s 52 of the Trade Practices Act , and the applicant is entitled to prevent that from occurring.
Case: National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369
Outcome: cited
It is clear that regard must be had to the relevant conduct as a whole, and in context. See generally Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45. The question whether a representation made by a person to the public, or a section of it, would be likely to mislead or deceive must be answered without regard to whether that person intends to mislead or deceive. It is not a question of whether, if the person makes these representations, he or she would be acting honestly and reasonably. It is simply a question of whether potential members of the class to whom the representations are to be addressed (which include the astute and the gullible, the intelligent and the not so intelligent, and the well educated and the poorly educated) are at serious risk of being misled or deceived: see .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12] [15] and National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369. 28 Statements that are capable of more than one meaning may be misleading or deceptive provided that the meaning for which the applicant contends is one that would be reasonably open, and might be drawn by a significant number of those to whom the representation is made. In the same way, a statement may contain a representation that is implied, rather than express. That is why a statement that is literally true can be misleading or deceptive: National Exchange at [48] [52].
Case: Neal v The Queen [1982] HCA 55 ; (1982) 149 CLR 305
Outcome: referred to
Mr Dunn submitted that, even if an injunction were granted, he should not be required to pay the applicant's costs. His longstanding dispute with the applicant regarding its rights to describe its members in the way that it does reflects a genuinely felt sense of grievance on his part. In some respects, he might be regarded as a "stirrer". To paraphrase the remarks of Murphy J in Neal v The Queen [1982] HCA 55 ; (1982) 149 CLR 305 at 316 317, Mr Dunn is entitled to be a stirrer. He is not, however, entitled to exemption from the ordinary rules that govern proceedings in this Court. In accordance with normal practice, costs should follow the event. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 12 December 2007 Counsel for the Applicant: Mr C Caleo SC with Mr J Moore Solicitor for the Applicant: Piper Alderman The Respondent appeared in person Date of Hearing: 10 December 2007 Date of Judgment: 12 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1966.html
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
The principles which govern s 52 are well established. When determining whether particular conduct was, or is, likely to mislead or deceive it is unnecessary to prove that anyone was actually misled or deceived: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198. However, evidence that particular individuals have been misled or deceived is admissible, and may be persuasive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87. The test is objective, and the Court must determine the question for itself: Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Finally, conduct is likely to mislead or deceive if there is a real and not remote possibility that it will do so. It is not necessary to establish that the degree of likelihood exceeds 50%: Global Sportsman at 87.
Case: S &amp; I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354
Outcome: cited
In the context of this case it is particularly important to note that a descriptive name can acquire a secondary meaning that identifies a specific person and that person's goods or services: see S &amp; I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 at 363.
Case: Society of Accountants and Auditors v Goodway and London Association of Accountants Ltd [1907] 1 Ch 489
Outcome: cited
The relevant legal principles are not difficult to state. The law has long protected the names of, and the names adopted by, societies of accountants. See, for example, The Society of Accountants in Edinburgh v The Corporation of Accountants Ltd (1893) 20 R 750 and Society of Accountants and Auditors v Goodway and London Association of Accountants Ltd [1907] 1 Ch 489. 30 I will deal firstly with the applicant's case based upon Mr Dunn's stated refusal to undertake not to use the term "Certified Practising Accountant" in his letterhead. I am satisfied, on the evidence, that those of the applicant's members who have been accorded the qualification of "Certified Practising Accountant" have acquired a reputation through that designation. I accept the applicant's submission that the combination of those three words have a secondary meaning, namely that a person who has that designation has obtained "membership of [the applicant] which, by its tests and examinations and by its rules and requirements as to qualification, confer[s] on its members a status different from that of other members of the profession" who do not have the same qualification: Society of Accountants and Auditors v Goodway and London Association of Accountants Ltd at 500.
Case: Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: cited
The principles which govern s 52 are well established. When determining whether particular conduct was, or is, likely to mislead or deceive it is unnecessary to prove that anyone was actually misled or deceived: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198. However, evidence that particular individuals have been misled or deceived is admissible, and may be persuasive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87. The test is objective, and the Court must determine the question for itself: Taco Company Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Finally, conduct is likely to mislead or deceive if there is a real and not remote possibility that it will do so. It is not necessary to establish that the degree of likelihood exceeds 50%: Global Sportsman at 87.
Case: The Society of Accountants in Edinburgh v The Corporation of Accountants Ltd (1893) 20 R 750
Outcome: cited
The relevant legal principles are not difficult to state. The law has long protected the names of, and the names adopted by, societies of accountants. See, for example, The Society of Accountants in Edinburgh v The Corporation of Accountants Ltd (1893) 20 R 750 and Society of Accountants and Auditors v Goodway and London Association of Accountants Ltd [1907] 1 Ch 489.