mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Crusader (1995) 120 FLR 219
Outcome: cited
These reasons concern the issue of costs following my judgment on the merits in this matter: In the matter of Arc Energy Limited [2008] FCA 1396 ("Arc Energy"). The reasons in that judgment give relevant context and background to these reasons. I heard oral submissions as to costs after judgment was delivered but gave Arc Energy Ltd ("Arc") and Buru Energy Ltd leave to put in further written submissions directed to the case of Re Crusader Limited (1996) 1 Qd R 117 cited by Oil Basins. Arc submits that Oil Basins Limited ("Oil Basins") ought pay the Plaintiff's costs of responding to the application filed by Oil Basins during the afternoon of Thursday, 7 August 2008, which occupied much of the hearing on the afternoon of Friday, 8 August 2008. It also opposes Oil Basins' application for a costs order in its favour. 7 Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480. 14 It was appropriate for Oil Basins to bring the matter of the litigation and the situation of the proxy voters to the attention of the Court. I am satisfied however that the application for an adjournment with associated orders was made for an ulterior purpose: Arc Energy at [10]. It unnecessarily added to the costs of the hearing. Even if Oil Basins may be considered to be an objector this finding is an exceptional circumstance warranting a costs order against it: Re Crusader at 231-232; Re Matine Ltd at 494.
Case: Re Matine Ltd (1998) 28 ACSR 492
Outcome: cited
Oil Basins submits, correctly, that generally the costs of objectors should be paid by the Company (Plaintiff): Re Crusader (1995) 120 FLR 219; and Re Matine Ltd (1998) 28 ACSR 492 ; Re Arrowfield Group Ltd (1995) 17 ACSR 649 ; Re Castlereagh Securities Ltd [1973] 1 NSWLR 624 ; Re Ampol Ltd (1989) 14 ACLR 772 , which were cited with approval by Hansen J in his decision to award the objectors their costs in Quatro Ltd v Argo Investments Ltd and Others (1999) 32 ACSR 480. 14 It was appropriate for Oil Basins to bring the matter of the litigation and the situation of the proxy voters to the attention of the Court. I am satisfied however that the application for an adjournment with associated orders was made for an ulterior purpose: Arc Energy at [10]. It unnecessarily added to the costs of the hearing. Even if Oil Basins may be considered to be an objector this finding is an exceptional circumstance warranting a costs order against it: Re Crusader at 231-232; Re Matine Ltd at 494.
Case: De L v Director-General, NSW Department of Community Services [1997] HCA 14 ; (1997) 190 CLR 207
Outcome: cited
No submissions have been made this morning as to whether my judgment or order of 13 June 2007 have been entered. Considering the situation on the best case of the appellant, however, comments of Toohey, Gaudron, McHugh, Gummow and Kirby JJ in De L v Director-General, NSW Department of Community Services [1997] HCA 14 ; (1997) 190 CLR 207 are relevant. 8 In that case, their Honours said at 215 as follows (omitting citations): The power of this court to reopen its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this court, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 , the Court indicated that there were five indicia which ought to be addressed in determining whether relief ought to be given: (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. The explanation for the delay is somewhat perfunctory and incomplete. As I have already noticed, it remains unclear whether the applicant was put on notice that the notice of appeal needed to be filed by 28 November. Counsel's letter to the applicant's solicitor put the solicitor on notice that there was a degree of urgency about the matter but that seems not to have been appreciated by the solicitor who swore his affidavit on 9 December 2008 but did not lodge the application for this extension until 17 December 2008. There is no prejudice to the respondent but as the Court said in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 the mere absence of prejudice is not enough to justify the grant of an extension. It seems to me that whether or not an extension of time should be granted in this application will be determined by reference to the merits of the appeal to which I will now turn. The applicant was born on 7 April 1974 in the Archeng District, Harbin City, Heilongjiang Province in China. He was educated between 1981 and 1993, having studied at a technical school in the last three years of his schooling. In March 1994 he was employed by Archeng Water Company and worked for that company for more than 13 years. During this period of employment he studied for Business Management at Harbin Economic Cadre Management College.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
Jess v Scott (1986) 12 FCR 187 , the Full Court said that special reasons need to be shown why the appeal should be permitted to proceed. The Court explained that special reasons in that context was meant to distinguish the case under consideration from the usual course according to which the time is 21 days.
Case: SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541
Outcome: cited
applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
Case: SZLML v Minister for Immigration and Citizenship [2009] FCA 83
Outcome: cited
applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
Case: SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384
Outcome: referred to
Federal Magistrate concluded that the applicant's submission was to particularise and expand on information which the Tribunal had paraphrased or summarised in what it put to the applicant. He concluded that whilst the Tribunal could have put what was said to be what should have been put, the Tribunal could not be criticised for summarising the information in the way that it did. For those reasons, the Federal Magistrate concluded that even if the Tribunal had an obligation to give information pursuant to s 424AA(b)(i) that it did not breach that obligation. However, the Federal Magistrate also concluded that the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. He followed a decision of Cowdroy J in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 in which his Honour concluded that the exclusions contained in s 424A(3) applied with equal force to s 424AA. The Federal Magistrate concluded that that decision stood for the proposition that independent country information did not have to be provided to an applicant under s 424A(1) and s 424AA. The Federal Magistrate analysed for himself the two sections and came to the same conclusion as Cowdroy J and, in doing so, disagreed with a decision of Driver FM in SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 to the contrary.
Case: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330
Outcome: cited
applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
Case: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270
Outcome: cited
Federal Magistrate concluded that the applicant's submission was to particularise and expand on information which the Tribunal had paraphrased or summarised in what it put to the applicant. He concluded that whilst the Tribunal could have put what was said to be what should have been put, the Tribunal could not be criticised for summarising the information in the way that it did. For those reasons, the Federal Magistrate concluded that even if the Tribunal had an obligation to give information pursuant to s 424AA(b)(i) that it did not breach that obligation. However, the Federal Magistrate also concluded that the information in question was independent country information which the Tribunal had no obligation to notify to the applicant. He followed a decision of Cowdroy J in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 in which his Honour concluded that the exclusions contained in s 424A(3) applied with equal force to s 424AA. The Federal Magistrate concluded that that decision stood for the proposition that independent country information did not have to be provided to an applicant under s 424A(1) and s 424AA. The Federal Magistrate analysed for himself the two sections and came to the same conclusion as Cowdroy J and, in doing so, disagreed with a decision of Driver FM in SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 to the contrary. The applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
Case: SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701
Outcome: cited
applicant's contention as to the construction in s 424AA has been considered and rejected by other members of the Court in SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 (Cowdroy J), SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 (Edmonds J), SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 (Middleton J), SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 (Gilmour J) and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 (Jagot J). Although the reasons in those cases may not be as these reasons, I agree in the results.
Case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244
Outcome: followed
It was contended by the appellant that the Federal Magistrate's conclusion was inconsistent with Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 80 ; (2003) 76 ALD 625. 38 If there is material before the Tribunal which, if accepted by the Tribunal, would raise a case different from that which was articulated by the applicant, the Tribunal is under an obligation to inquire into that other case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at [13] . That is consistent with the inquisitorial procedure under which the Tribunal operates. Like any other administrative decision maker, its responsibility is to make the appropriate and proper decision on the facts as found. It cannot, like a Court in an adversarial proceeding, limit its consideration to the case as articulated by the parties.
Case: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69
Outcome: referred to
Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case.
Case: Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171
Outcome: referred to
Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case.
Case: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621
Outcome: referred to
The applicant made a number of claims against the respondents in a proceeding issued in this Court. A judge of the Court made an order that issues of liability be determined separately from and prior to issues of quantum. I heard and determined the issues of liability. My reasons, which I will refer to as my liability reasons, are published in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621. 2 On 22 November 2007, I made the following declarations: "1. The applicant is the owner of copyright in the artworks. 2. By the production and distribution of the brochure to the parties listed below the first respondent has infringed the applicant's copyright in the artworks in breach of s 36 of the Copyright Act 1968 (Cth): (i) Mr David Bartlett and Mr Boyd Dainton of Audion Australia on or about 10 October 2006; (ii) Mr Peter Batt of Fosh Australia in October 2006; (iii) Mr Waldo Latowski of Griffin Technology on 12 October 2006 3. The second respondent authorised the first respondent's said infringement of the applicant's copyright in the artworks in breach of s 36 of the Copyright Act 1968 (Cth).
Case: General Tire &amp; Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197
Outcome: applied
In relation to the claim for damages under s 115(2) of the Act , the Court, in awarding damages for infringement of copyright, will have regard to similar considerations as attend the award of damages in tort: General Tire &amp; Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197. The purpose of an award is to compensate the plaintiff for the loss suffered as a result of the defendant's infringement: Bailey v Namol Pty Ltd [1994] FCA 1401 ; (1994) 53 FCR 102 at 110-111.
Case: Milpurrurra v Indofurn Pty Ltd (1994) 54 FCR 240
Outcome: referred to
Various methods of measuring damages for an infringement of copyright have been described in the cases. In Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 at 336, Lord Wright MR said that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". However, the authorities make it clear that is only one method of measuring damages: Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 ; Bailey 53 FCR at 111-112; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. Another method is to determine the licence fee or royalty the infringing party would have to pay to use the work lawfully. There are difficulties in applying that approach in circumstances where it cannot be inferred that the infringing party would pay a licence fee rather than not use the work ( Autodesk 17 IPR at 75). The applicant did not contend that either of the aforesaid methods was appropriate in this case. It submitted that this was a case in which it was appropriate to treat the damages as being at large and to approach the assessment of damages as a jury would ( Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 at 1174 per Horridge J). I think that is the proper approach in the circumstances of this case.
Case: Paterson Zochonis Ltd v Merfarken Packaging Ltd [1983] FSR 273
Outcome: referred to
In view of the above conclusions, it is not necessary for me to consider a submission made by the respondents that if there was any damage in this case it was to the goodwill of the applicant's business and such damage is not recoverable under s 115(2) of the Act . The respondents referred to Paterson Zochonis Ltd v Merfarken Packaging Ltd [1983] FSR 273 at 281-282 per Oliver LJ; at 287 per Fox J; at 294-295 per Goff LJ although that was quite a different case on the facts.