mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601
Outcome: referred to
Shahidi said that he created his drawing from earlier drawings and the drawings were prepared during his employment with Caroma. His drawing constitutes 'the expression of original or inventive thought' : see University of London Press Limited v University Tutorial Press Limited [1916] 2 Ch 601 per Peterson J at 608. Although the original drawing is not in evidence, the Court accepts that such drawing is reproduced in the Plumber's Technical Manual, in brochures published by Caroma relating to the Trident suite and on Caroma's website. The Court finds that copyright subsists in the Caroma drawing and that Caroma owns such copyright. At the time Mr Shahidi created the Caroma drawing using Caroma's computer drawing software he was a qualified person for the purposes of s 32(4) of the Copyright Act , being an Australian citizen, and pursuant to s 32(2) of the Copyright Act Caroma owns the copyright in such drawing.
Case: Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435
Outcome: referred to
chose not to specify any particular features of the representation in respect of which it claimed a monopoly nor did it designate any particular features of the representations which are to be disregarded in considering the extent of the monopoly protection. In Wanem Pty Ltd v John Tekiela and Another [1990] FCA 372 ; (1990) 19 IPR 435 Gummow J, after being referred to Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421 and Turbo Tek Enterprises Inc and Another v Sperling Enterprises Pty Ltd and Another (1989) 88 ALR 524 , said at 439-440: The authorities are collected there for the proposition that where the statement of monopoly does not identify particular features of shape or configuration of the design, the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind. See also Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd [1991] FCA 434 ; (1991) 103 ALR 239 at 246-247; McCallum &amp; Co Pty Ltd v Allen Manufacturing Co Pty Ltd and Another (2001) 52 IPR 550 at [17]-[18]. Accordingly, no aspect of the shape or configuration of the registered design is to be disregarded.
Case: Wellington Newspapers Ltd v Dealers Guide Ltd [1984] 2 NZLR 66
Outcome: referred to
Court must consider all of the circumstances surrounding the infringement in its consideration of whether the infringement was flagrant or resulted from mistake or carelessness: see Wellington Newspapers Ltd v Dealers Guide Ltd [1984] 2 NZLR 66 per McMullin J at 69. Those circumstances include the state of mind of Technicon relating to the design infringement which has been referred to in the Court's finding on fraudulent imitation. Technicon submits that additional damages should not be awarded because there was no purpose or advantage in Technicon publishing a drawing which did not reflect its product.
Case: Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: followed
The Court has discretion whether to allow the case to be reopened or not. That discretion must be exercised in the interests of justice. An important consideration against allowing an application to reopen is the need to bring finality to litigation. It is also relevant to examine the circumstances in which the need to reopen arose and in particular whether the cross-claimants deliberately chose not to call evidence at the first instance which it wished to call in the reopened case: see Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256. As previously mentioned, the cross-claimants deliberately chose not to call evidence as to the separate costs of the applicants suing the respondents other than AIMS despite clear indications from CGU that it would rely on this gap in the evidence. But the interests of justice require that these factors be taken into account against the competing interests of the parties to the litigation. In this case if the application is refused, CCAS loses the chance of arguing that the settlement was reasonable. The interests of justice in this instance lie in allowing CCAS to make that case because the only prejudice suffered by CGU is the delay in the completion of the litigation. Any additional costs which are attributable to the way in which the CCAS has conducted the case can be awarded to CGU and thereby address any prejudice suffered by CGU. Subject to the next question to be considered, I would grant leave to CCAS to reopen its case for the limited purpose of calling evidence and addressing argument on the reasonableness of the agreement to settle the costs of the applicants by payment of $450,000. 14 Aside from the discretionary argument just considered, CGU argued that CCAS should not have leave to reopen its case because there was a legal impediment in the way of CCAS ever establishing that the settlement agreement relating to the applicants' costs was reasonable. The settlement included a payment of the applicants' costs of suing AIMS. This was a liability which was not insured against. It was necessarily unreasonable for CCAS to saddle CGU with a settlement which included an element which was outside the indemnity provided by the policy.
Case: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603
Outcome: applied
Where an insured claims indemnity from an insurer for liability to a third party based on a settlement of that liability with the third party, the insured is entitled to indemnity if the settlement is reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 ( Unity Brokers ). Counsel for CCAS seemed to argue that the insured need only establish that the settlement was concluded and then the onus shifts to the insurer to establish that the settlement was not reasonable. The argument appears wrong on its face because the reasonableness of the settlement is a critical part of the case to be made by the insured. It is a necessary element of its claim. Furthermore, it depends on information which is normally within the knowledge of the insured and outside the knowledge of the insurer. However, counsel for CCAS submitted that the proposition was supported by the majority decision in BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72. He relied on [263] in the judgment of Giles JA, with whom Sheller JA agreed, as follows: In the present case a reasonable settlement was foreseeable. The burden was on BNP [the indemnifier] to prove the level at which it became unreasonable for PCL [the claimant for indemnity] to fail to settle the London arbitration, but on the view that I have taken on the basis that Bolton was likely to fail in the arbitration. The level is less than the settlement in fact reached, and on the incomplete evidence is something to be arrived at in a fairly broad manner; there being a loss, the court must do its best. In my opinion, PCL could reasonably have settled the London arbitration for a sum up to the order of seventy per cent of SSOE's claims, in round terms $US2,000,000 plus interest should replace the $2,900,000 plus interest. (explanation added)
Case: BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72
Outcome: considered
Where an insured claims indemnity from an insurer for liability to a third party based on a settlement of that liability with the third party, the insured is entitled to indemnity if the settlement is reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 ( Unity Brokers ). Counsel for CCAS seemed to argue that the insured need only establish that the settlement was concluded and then the onus shifts to the insurer to establish that the settlement was not reasonable. The argument appears wrong on its face because the reasonableness of the settlement is a critical part of the case to be made by the insured. It is a necessary element of its claim. Furthermore, it depends on information which is normally within the knowledge of the insured and outside the knowledge of the insurer. However, counsel for CCAS submitted that the proposition was supported by the majority decision in BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72. He relied on [263] in the judgment of Giles JA, with whom Sheller JA agreed, as follows: In the present case a reasonable settlement was foreseeable. The burden was on BNP [the indemnifier] to prove the level at which it became unreasonable for PCL [the claimant for indemnity] to fail to settle the London arbitration, but on the view that I have taken on the basis that Bolton was likely to fail in the arbitration. The level is less than the settlement in fact reached, and on the incomplete evidence is something to be arrived at in a fairly broad manner; there being a loss, the court must do its best. In my opinion, PCL could reasonably have settled the London arbitration for a sum up to the order of seventy per cent of SSOE's claims, in round terms $US2,000,000 plus interest should replace the $2,900,000 plus interest. (explanation added)
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166
Outcome: referred to
a case such as the present where an applicant alleges the existence of a global market or a market extending beyond the bounds of Australia (but which includes Australia), it is necessary that that market be identified in any pleading. It is a material fact or particular: see Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166 at 173. The pleadings must identify the relevant goods or services, the geographic boundaries of the market and those involved in close competition within the market whom it is said have engaged in anti-competitive conduct. A single market will thus be identified, which will include a "market in Australia". The applicant has pleaded that there is a global market for the supply of rubber chemicals and an Australian market for those products. The particulars refer to the global market and how elements of that market extend to Australia. For example, the particulars sub-joined to paragraph 12 include the information that the "total demand for rubber chemicals in Australia in the Cartel Period was approximately AUD$120 million". That demand was met exclusively by imports, the majority of which were produced elsewhere by the Respondents and one other company. Reliance was also placed, in the particulars subjoined to paragraph 13, to a passage in the Rubber Chemicals World Data Book 2004 which refers to "a single global market". Reference was made to findings by the European Commission, in December 2005, that cartel arrangements involving the respondents and others led, after 1995, to agreed increases of prices on a global and "multi regional" basis.
Case: Australian Competition and Consumer Commission v April Marketing Services Australia Pty Ltd [2007] FCA 2024
Outcome: referred to
for the applicant conceded that this part of the applicant's case is pleaded "at a level of generality" but contended that "the best available particulars have been provided and the core allegations are clear". Reliance was placed on the decision of Bennett J in Australian Competition and Consumer Commission v April Marketing Services Australia Pty Ltd [2007] FCA 2024 which was said to be "an analogous ACCC cartel claim." I am not persuaded that the pleadings with which her Honour was concerned in April Marketing were analogous (except perhaps in a very broad sense) with those in the present case. Nonetheless Bennett J's reasons, especially at [48] and [49], do emphasise the need for applicants to be accorded some leeway in pleading cartel cases. She was prepared to allow the applicant to plead conclusions and defer the provision of particulars until after discovery. Although the relevant pleadings in April Marketing were not set out in her Honour's reasons, there is nothing to suggest that they did no more than paraphrase or adapt relevant statutory provisions. Due allowance must be made for the fact that the cartel agreements were (it may be assumed) negotiated in secrecy by the representatives of the corporate entities involved. The applicant was, of course, not privy to these discussions and the arrangements to which they gave rise. Despite this, the applicant has been able to draw on a large amount of information which has emerged from foreign proceedings in which regulatory authorities have brought participants in the cartel to account for their conduct. It has been able to prepare the detailed material in Schedule 3 to its amended statement of claim. The particulars of 110 meetings between employees of the relevant companies are itemised in that Schedule. This material includes the relevant dates, participants, locations and the subject matter of each meeting. The existence and inclusion of this material begs the question - if such detailed information is already available to the applicant, why were the pleadings not more specific? Paragraphs 14 to 17 are central to the pleading. Some modest attempts have been made to improve the drafting since my earlier reasons were published. Nonetheless, the principal deficiencies, earlier identified, remain such that these four paragraphs are embarrassing. They should be struck out. Identification of the Markets
Case: Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89
Outcome: referred to
law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia".
Case: Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35
Outcome: cited
does no more than support a general principle that there may, for TPA purposes, exist a market in Australia even though it forms part of a wider international market. Hill J's decision was so understood by Middleton J in Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35. His Honour considered the meaning of a "market in Australia" in the context of s 45 of the TPA. Significantly, his Honour held (at 53) that: "... the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree...In my opinion, Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 ( Riverstone ) was correct in concluding that the fact that a market was global did not signify that there could not be a market in Australia for the same products (or services)". Emirates and the other authorities to which I have referred make it clear that, simply because a market is global, this does not mean that there could not be a market in Australia for the same products. The applicant's pleading is not, in my view, deficient by reason only that it speaks of the respondents being in competition with each other in the Australian market and throughout the world. There may be a market in Australia which forms part of a wider global market. That will, however, be the case only if the same firms are in close competition with each other to attract customers for their goods in both the global market and the Australian market which forms part of the global market. Unfortunately, the applicant does not plead sufficient material facts for the respondents to know clearly whether the applicant is alleging the existence of a global market (of which a market in Australia forms part) or whether it is alleging the existence of a market in Australia and a global market in which, for example, different or additional firms compete for business. The problem is compounded by the variable and imprecise phraseology to which attention has been drawn in paragraph 28 above. Although the applicant's most recent attempt to identify a market in Australia has remedied some of the defects in its original statement of claim, further refinement will be necessary before the necessary degree of precision is achieved. Foreign respondents giving effect to the arrangements in Australia In paragraphs 18 to 25 of the original statement of claim the applicant alleged, in the most general terms, that the foreign respondents gave effect to the cartel arrangements in Australia. There was a notable absence of material facts to establish this part of the applicant's case. In addition, the separate causes of action which needed to be established for the purposes of s 45 (2)(b)(i) and (ii), were rolled up.
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569
Outcome: referred to
have drawn attention to further authorities in the course of argument. Most are relevant to particular issues and I will refer to them later in these reasons. There were, however, two passages (among others) of more general application on which counsel for the applicant placed emphasis: In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569, at [12], Merkel J cautioned that pleadings are only a 'means to an end': "the relief to be granted on a pleadings motion is a matter of discretion (see Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80 ; (1979) 28 ALR 191 at 193). Even if I had acceded to the arguments of Esso to a greater extent than I have in my view the Court's individual docket system of case management and its ability to ensure that the proceeding is conducted in a manner which does not unfairly prejudice any of the parties is such that I would not strike out the pleading. Rather, if complaint is made about any particular aspect being embarrassing or prejudicial the Court has ample power to deal with that aspect so as to avoid prejudice or embarrassment in the course of its management of the case. I am satisfied that the causes of action relied upon have been pleaded in a manner that ensures that Esso understands those causes of action and the substance of the allegations made against Esso . Thus, the pleading is fulfilling its basic function at this stage. In all the circumstances I would decline to exercise my discretion to strike out the statement of claim or any part thereof". In State of Queensland , Drummond J held (at [34]) that the nature of the case itself must determine the standard to which the pleadings are held: "[w]here a claim is based on a clandestine compact between a number of respondents, the applicant can be expected to be unable to give precise particulars of material facts sufficient to support its allegation of the making of that compact. In such cases, the entitlement of the respondents to be apprised before trial of the nature of the applicant's case must be "accommodated to the nature of that case itself"...".
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409
Outcome: cited
my earlier reasons I referred to the principles which govern the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action and the principles which inform the assessment of the adequacy of pleadings. These principles were summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. I restate that part of my earlier reasons here for the sake of convenience and because those principles have present application:
Case: Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608
Outcome: considered
applicant submits that its definition of "the Australian market" is sufficient and not productive of confusion, notwithstanding the later references to a global market for the supply of the same rubber chemicals. It relies on the decision of Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] to support the proposition that a "global market is a market in Australia if the goods or services are supplied [here]." In Riverstone , Hill J was dealing with an application for pre-action discovery. All he was called on to determine, on an interlocutory basis, was whether there existed reasonable cause to believe that the applicant had or may have had a right to relief against the respondent. His Honour found that the evidence supported the existence of a global market for new and second hand computers and rejected a submission that, simply because no reference was made in the affidavits relied on by the applicant to an Australian market for these products, no such market existed. His Honour said ([at 21]) that: "A global market which includes Australia (and the inference is that any global market did) is arguably a market in Australia if sales are made here (and the evidence shows they are) even if that market might also exist in the United States, Japan, China or any other country which was a member of the European union" (emphasis added). Hill J is not, therefore, to be understood as defining a "market in Australia" simply by reference to the fact goods or services which are supplied elsewhere in the world are also supplied in Australia. Riverstone does no more than support a general principle that there may, for TPA purposes, exist a market in Australia even though it forms part of a wider international market. Hill J's decision was so understood by Middleton J in Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35. His Honour considered the meaning of a "market in Australia" in the context of s 45 of the TPA. Significantly, his Honour held (at 53) that: "... the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree...In my opinion, Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 ( Riverstone ) was correct in concluding that the fact that a market was global did not signify that there could not be a market in Australia for the same products (or services)".
Case: Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244
Outcome: referred to
law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia".