mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Outcome: cited
am satisfied that, having regard to the affidavit of Ms Gardner, the applicant has made out a prima facie case of infringement of the trade mark in relation to articles which are not of the manufacture of the applicant or its parent, for the purposes of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72]. A further question arises in relation to the specific elements of section 136 of the Trade Marks Act 1995 (Cth) which provides that the Customs CEO must release the seized goods to their designated owner if, within the action period, Jemella has not brought an action for infringement of the notified trade mark in respect of the goods, and given to the customs CEO notice in writing of the action. The action period relevantly expired in respect of the first notice on 20 November 2009 and in respect of the second and third notices on 23 November 2009. The action was commenced on 20 November 2009 for infringement of the notified trade mark in respect of all of the goods.
Case: Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242
Outcome: considered
the NT registrar also points out, in Strickland (on behalf of the Maduwongga People) v Native Title Registrar (1999) 168 ALR 242 at [9] French J observed: (R)egistration of a native title claim confers upon the registered applicants important procedural rights. It constrains the ability of the State government to proceed to do a valid future act until, in the case of those acts to which Subdiv P applies, it has negotiated an agreement with the applicants or secured an arbitral determination that the act may be done.
Case: Commonwealth of Australia v Clifton (2007) 164 FCR 355
Outcome: considered
the NT registrar refers to the following passage from Commonwealth of Australia v Clifton (2007) 164 FCR 355 at [50]: The Attorney-General stated in the second reading speech [to the Native Title Amendment Bill 1997 (No. 2)] that one of the outcomes the Bill was designed to achieve was 'to put in place a registration test for claims which ensures that those negotiating with developers have a credible claim'. The Attorney-General also stressed that 'an effective registration test as the gateway to the statutory benefits which the act provides is essential' and that it was 'essential to the continuing acceptance of the right to negotiate process that only those with a credible native title claim should participate'. The requirements of s 62 inform the process to be followed by the NT registrar in performing the function prescribed by s 190A. The available material must constitute a factual basis, in general terms, for the claim that native title rights and interests exist. We are presently concerned with s 190B and in particular subss 190B(5), (6) and (7). However subs 190B(4) is also relevant. Those subsections are as follows: (4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. (5) The Registrar must be satisfied that the factual basis on which it asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. (7) The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or (b) previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by: (i) the Crown in any capacity; or (ii) a statutory authority of the Crown in any capacity; or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. Of these provisions, the most important for present purposes is s 190B(5).
Case: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331
Outcome: referred to
am further satisfied that the attachment to the facsimile was itself forwarded by facsimile from the second respondent to the first respondent at about 1.45 pm on 13 September 2005, whereupon it was added by the third respondent to the facsimile cover sheet and then transmitted by him as a three page document, on behalf of the first respondent. The 13 September facsimile was not published by the second respondent (see [5] above and [15]-[16] below; see also Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-5 per Isaacs J). The applicants' case is that more than 30 copies of the facsimile directed to 'NM Customers' were transmitted to various persons in New South Wales, Queensland, Victoria, Tasmania, South Australia, Western Australia and the Australian Capital Territory on or about 13 September 2005. The second publication took the form of a three page letter (not to be confused with the two page attachment to the 13 September facsimile) to 'Mr Scott Eldridge, Regional Coordinator, Australian Tax Office' from the second respondent bearing date 13 September 2005 ('the ATO letter'). A photocopy of a copy of this letter has become Exhibit C in the proceedings. It is acknowledged by the applicants that the manuscript letter 'C' was not on the copy from which the photocopy was made nor were the words 'SECOND SCHEDULE' or the paragraph numbers appearing in square brackets which have been added by the applicants in the left hand margin for ease of identification. The second respondent has admitted hand delivering the original of the ATO letter to the Hurstville branch of the Australian Tax Office on or about 13 September 2005. The third respondent says that the second respondent did so at his request.
Case: Tisand (Pty) Ltd v Owners of the ship MV "Cape Moreton" (Ex "Freya" ) [2005] FCAFC 68 ; (2005) 219 ALR 48
Outcome: referred to
Tisand (Pty) Ltd v Owners of the ship MV "Cape Moreton" (Ex "Freya" ) [2005] FCAFC 68 ; (2005) 219 ALR 48 the 'Cape Moreton' had been arrested by an admiralty marshal of the Court on the application of the plaintiffs in support of a claim for damage to a cargo of zircon sand said to have occurred on a voyage from South Africa to China. Freya Navigation Shipholding Ltd was said to be legally responsible, as carrier, for the damage. A Full Court comprising Ryan and Allsop JJ considered a Notice of Motion brought by Alico Marine Ltd seeking an order that the writ in rem under which the ship had been arrested be set aside. Alico Marine Ltd claimed to be the owner of the ship. The issue before the Full Court was whether Freya was the owner of the ship at the time of the proceedings, given that it was the 'registered owner', or whether Alico was the owner, albeit in a proprietary sense. If Freya was the owner, then the arrest of the ship was warranted, as damage to the cargo had occurred while the ship was in the possession of Freya and prior to the sale of the ship to Alico. In the result the writ in rem was set aside.
Case: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; (2005) 223 CLR 331
Outcome: referred to
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 ; (2005) 223 CLR 331, the High Court was concerned to determine the meaning and manner of application of Article 146 of the General Principles of Civil Law of the People's Republic of China. In that case an Australian living in China had been injured in a fall in an apartment provided for his use by an Australian company. Gummow and Hayne JJ in a joint judgment, Callinan J and Heydon J each concluded that in the absence of evidence to the contrary, it should be presumed that the law of the People's Republic of China with respect to the construction of Article 146 was the same as the law in Western Australia where the case had been brought (at 372 [125], 411 [249] and 420 [275]).
Case: Browne v Dunn (1893) 6 R 67
Outcome: referred to
am not satisfied that more was said on 22 August 2006 than the third respondent conceded. It is true that the third respondent did not challenge Mr Yip's account in cross-examination, but the niceties of Browne v Dunn (1893) 6 R 67 may not have been known to him as a litigant in person. That which was said could not, as I see it, be described as a 'violent verbal assault made by the Third Respondent on the Applicants' lawyers'. Insofar as the applicants rely upon the so-called 'malice' of the second respondent 'infecting the First respondent by reason of' his being a guiding mind of the first respondent, I am unable to so conclude. The second respondent was not a guiding mind of the first respondent. He was not a director of the first respondent, nor was he a shadow director or even a shareholder. Notwithstanding that the first applicant only entered the market for automotive replacement glass in 1998, it is clear that it rapidly progressed to become one of the major players in the market. Its ability to reach this status was undoubtedly assisted by the dishonesty of the second and third applicants, acting with the cooperation of FYG, in respect of which they were charged and convicted. As Goldring DCJ said: '... the total amount of $263,692.16 which should have been paid [by way of customs duty and goods and services tax on imported automotive glass] was not paid [but was paid promptly after they were found out] ... The offences ... clearly resulted from a well thought out plan which required careful execution and the co-operation of the third party, FYG in China. ... ... the automotive glass industry in Australia is competitive ... ... I am satisfied that the motive for the fraud was commercial ... ... Customs fraud ... is more serious [than social security fraud] because those who commit it are usually motivated solely by commercial greed ...'
Case: National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569
Outcome: referred to
the second respondent was excused from giving further evidence on 13 April 2007 (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569) an order was made, on the applicants' application, that no further use may be made of any part of the affidavit or oral evidence of the second respondent (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582).
Case: National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582
Outcome: referred to
the second respondent was excused from giving further evidence on 13 April 2007 (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 5) [2007] FCA 569) an order was made, on the applicants' application, that no further use may be made of any part of the affidavit or oral evidence of the second respondent (see National Auto Glass Supplies (Australia) Pty Limited v Nielsen &amp; Moller Autoglass (NSW) Pty Limited (No 7) [2007] FCA 582).
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: referred to
s 52 of the Trade Practices Act to be enlivened it is sufficient that the conduct complained of, in all the circumstances, answers the statutory description, that is to say, that it is misleading or deceptive or is likely to mislead or deceive. It is unnecessary to go further and establish that any actual or potential consumer has taken or is likely to take any positive step in consequence of being misled or deceived. That is not to say that evidence of actual misleading or deception and of steps taken in consequence thereof is not likely to be both relevant and important on the question of whether the relevant conduct in fact answers the statutory description and as to the relief, if any, which should be granted (per Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ('Taco Bell') at 199). In Taco Bell at 200, Deane and Fitzgerald JJ emphasised that 'no conduct can mislead or deceive unless the representee labours under some erroneous assumption' (cited with approval in Campomar at [104]). Conduct which produces or contributes to confusion or uncertainty may or may not be misleading or deceptive for the purposes of s 52. Ordinarily, a tendency to cause confusion or uncertainty will not suffice to establish conduct of the type described in s 52. The question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52 (per Deane and Fitzgerald JJ in Taco Bell at 201; see also Campomar at [106]). As to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).
Case: Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited (2006) ATPR 42-106
Outcome: referred to
Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited (2006) ATPR 42-106 a Full Court formulated the above propositions as appropriate matters for consideration where there had been an alleged contravention of the Trade Practices Act by a drug company in the sending of certain flyers to members of the medical profession and the publication of certain advertisements in 'Australian Doctor' magazine concerning an asthma drug. The Court observed at [52] that the lack of evidence called by the applicant in that case to the effect that general practitioners relied upon the representations complained of in prescribing medication for use by their patients was not determinative of a case for an alleged contravention of s 52. The section does not require demonstration that anyone has actually been misled.
Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: referred to
to whether conduct may be categorised as misleading or deceptive Deane and Fitzgerald JJ said in Taco Bell at 202: 'Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s 52 , be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s 52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s 52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. ...' (see also Campomar at [100] and Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [36] - [37] ).
Case: Adam v Ward [1917] AC 309 at 334
Outcome: referred to
privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential (per Lord Atkinson in Adam v Ward [1917] AC 309 at 334; see also Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 ('Lange') at 570).
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: referred to
privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential (per Lord Atkinson in Adam v Ward [1917] AC 309 at 334; see also Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 ('Lange') at 570). The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech (see Lange at [568]). Apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication more often than not occasions of publication to a single person the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers (see Lange at [572]). In Lange at 573 Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said of s 22 at 573: 'Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege.' In my opinion, the communication of the ATO letter was protected by qualified privilege. In relation to the publication of the 13 September facsimile and the ATO letter in New South Wales it is appropriate to have regard to s 16 of the Defamation Act 1974 (NSW), which relevantly provided: '16(1) Where an imputation complained of is made by the publication of any ... letter, note, ... or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest ... (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest ..., and (ii) are matters of substantial truth, and (iii) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.'
Case: Belt v Lawes (1882) 51 LJQB 359
Outcome: referred to
Belt v Lawes (1882) 51 LJQB 359 at 361 Field J said: '... a libel prima facie imports a wrong, which it could not do if the alleged libellous matter were true, and therefore the onus of proving the truth thereof is cast on the defendant. ...' Later at 361 Huddleston, B said: 'The allegation is that the defendant published "falsely and maliciously". The defendant in his statement of defence traverses the falsehood of the statement alleged to have been made by him, and thereby takes the onus of justifying, but this he would have without such traverse.' In considering the truth defences which have been raised it is convenient to address the defamatory imputations referred to at [203], [211], [214], [222], [242] and [248] above together and to also consider the defamatory imputations referred to at [225], [231] and [235] together. It will be recalled that the defamatory imputations referred to at [203], [211] and [242] were conveyed by the publication of the 13 September facsimile and the defamatory imputations referred to at [214], [222] and [248] were conveyed by the publication of the ATO letter. Each of the defamatory imputations referred to at [225], [231] and [235] were conveyed by the publication of the 15 September email. In my opinion, the respondents have failed to establish that the imputations to the effect that the second applicant used the first applicant to launder money to China for her own personal gain and that the second and third applicants defrauded the Australian Taxation Office were matters of substantial truth within the meaning of s 15(2) of the Defamation Act 1974 (NSW). Similarly, in respect of the publication of the 13 September facsimile in Queensland, Victoria, South Australia, Western Australia, Tasmania and the Australian Capital Territory, the respondents have failed to establish that these imputations were true in substance and in fact.