mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ankamuthi People v State Government of Queensland (2002) FCA 897
Outcome: cited
Although I advised the applicants and they have considered the possibility of amending the present proceedings, I have been instructed to discontinue and lodge fresh proceedings to avoid any argument in relation to a perceived lack of authorization in relation to these proceedings. The reference to my advice should not be taken as any waiver of legal professional privilege." The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs. 6 The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13] . 7 The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."
Case: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876
Outcome: cited
Although I advised the applicants and they have considered the possibility of amending the present proceedings, I have been instructed to discontinue and lodge fresh proceedings to avoid any argument in relation to a perceived lack of authorization in relation to these proceedings. The reference to my advice should not be taken as any waiver of legal professional privilege." The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs. 6 The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13] . 7 The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."
Case: Ruddock v Vadarlis (No 2) (2001) 155 FCR 229
Outcome: cited
Although I advised the applicants and they have considered the possibility of amending the present proceedings, I have been instructed to discontinue and lodge fresh proceedings to avoid any argument in relation to a perceived lack of authorization in relation to these proceedings. The reference to my advice should not be taken as any waiver of legal professional privilege." The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs. 6 The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13] . 7 The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."
Case: Grundy v Lewis [1998] FCA 563
Outcome: cited
Although I advised the applicants and they have considered the possibility of amending the present proceedings, I have been instructed to discontinue and lodge fresh proceedings to avoid any argument in relation to a perceived lack of authorization in relation to these proceedings. The reference to my advice should not be taken as any waiver of legal professional privilege." The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs. 6 The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13] . 7 The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."
Case: O'Neill v Mann [2000] FCA 1680
Outcome: cited
Although I advised the applicants and they have considered the possibility of amending the present proceedings, I have been instructed to discontinue and lodge fresh proceedings to avoid any argument in relation to a perceived lack of authorization in relation to these proceedings. The reference to my advice should not be taken as any waiver of legal professional privilege." The discontinuance is made under O 22 of the Federal Court Rules by reason of the named applicants' representative position with respect to the claimant group. Leave of the Court is required under subrule (2): see Ankamuthi People v State Government of Queensland (2002) FCA 897. Where leave to discontinue is sought in a proceeding, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews &amp; Partners v French Wools Ltd [1977] 1 WLR 876 at 879 which has been adopted in a number of cases in this Court. I have determined that discontinuance in this matter will occasion no injustice, subject to the question of costs. 6 The Court has a general discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) to make cost orders. The principles informing the Court's discretion in such cases are well known: see eg. Ruddock v Vadarlis (No 2) (2001) 155 FCR 229 at par 234. However, when costs are sought in discontinuance proceedings, somewhat different considerations obtain to those that obtain under s 43. It has been recognised that the underlying policy of the Rules is that the discontinuing party should be liable to pay the other party's costs unless the Court orders otherwise: see e.g. Grundy v Lewis [1998] FCA 563. That policy, though, has not itself solidified into a principle which parallels the usual rule under s 43 of costs following the event. The Courts have indicated that, on a motion for discontinuance, the conduct of the parties in the matter and the reasons for the discontinuance can bear heavily on the exercise of the discretion as to costs: see O'Neill v Mann [2000] FCA 1680 at par [13] . 7 The consideration of an award of costs in this particular proceeding must, of course, be seen under the shadow of s 85A(1) and (2) of the Native Title Act. Section 85A provides: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs."
Case: Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305
Outcome: followed
The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the "unreasonable conduct" of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs.
Case: De Rose v State of South Australia (No 2) [2005] FCAFC 137
Outcome: cited
The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the "unreasonable conduct" of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
is not in dispute that the power summarily to dismiss a pleading as disclosing no reasonable cause of action is a power to be exercised with special caution, and only in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( General Steel) . Applying the General Steel test, in my judgment the contentions by the ACCC that the documents convey the alleged representations are at least arguable, with the consequence that those impugned paragraphs should not be struck out. This view is buttressed by the heading of the document, and the failure to refer to the absence of any previous communication between the recipients of the LAN documents and Australialink. The impugned paragraphs in relation to the Notice of Intention document are set out in par 15 of the Statement of Claim: 15.1 that Australialink had instituted or was in the process of instituting court proceedings against the Responding Recipient; 15.2 that the Notice of Intention was an official court form (rather than a form created by Australialink); 15.3 that the Notice of Intention was issued as part of court proceedings; 15.4 that a date had been fixed by the court, or alternatively Australialink, for the filing of a plaint with the court; 15.5 that the Responding Recipients' rights were affected by the issuing of the said Notice of Intention; ... 15.7 that the court process required the Notice of Intention to be executed by a person on behalf of the creditor and witnessed by another person, and these steps had occurred. While the representation pleaded in 15.2 does not to me appear to be as clear as the other representations in that paragraph, the representations alleged by the ACCC in par 15, and which are sought to be impugned, are in my opinion at least arguable. This conclusion is justified by the formatting and the subheading "Notice of Creditors Commencement of Proceedings at a Magistrates Court" which is expressed not as a future possibility but as a fact.
Case: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 ; (2008) 252 ALR 41
Outcome: cited
the purposes of deciding a strike-out motion, or whether the pleading discloses a reasonable cause of action, the Court is obliged to assume the truth of the allegations in the Statement of Claim, and draw all inferences favourable to the party against whom the strike-out motion is brought. This is because the question is whether the allegations in the Statement of Claim, even if proved, cannot succeed as a matter of law: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 ; (2008) 252 ALR 41 per Finkelstein J, at [4]. From the Statement of Claim and the annexures thereto, the applicant, the Australian Competition and Consumer Commission (the ACCC) makes the following allegations: 5.1. Australialink publishes business directories on the internet, and sells listings in those directories to persons and businesses throughout Australia. 5.2. The method by which Australialink primarily markets its services to potential clients and obtains listing orders is as follows. 5.3. Since at least January 2006, Australialink has obtained details of potential customers by purchasing customer lists from third party suppliers and from the online version of the Yellow Pages directory. 5.4. Australialink sends, by post or facsimile, a document called a "Listing Advice Notice" (" LAN ") to various businesses called " Recipients "), using the contact details obtained as described above. A copy of a LAN is Annexure A to the statement of claim. 5.5. A slightly different version of the LAN is sent to Recipients located in Queensland. This version (the " Qld LAN ") includes the following warning statement across the top of the document: THIS IS A SOLICITATION, NOT AN INVOICE FOR A DEBT INCURRED BY YOU. PLEASE DO NOT SEND ANY PAYMENT WHEN RETURNING. 5.6. An example of a Qld LAN is Annexure B to the statement of claim. 5.7 There will have been no dealings between Australialink and a Recipient prior to Australialink sending the document, other than that Australialink may have previously sent a LAN or Qld LAN to that business and not have received any reply. 5.8 When a Recipient signs and returns the LAN, Australialink then issues a tax invoice to the Recipient (called a Responding Recipient) claiming payment for a directory listing fee. If the Responding Recipient does not pay the invoice, after several subsequent reminder notices Australialink sends a letter of demand purporting to be from a commercial collection agency. 5.9 If the Responding Recipient does not comply with the letter of demand then Australialink sends a document entitled "Notice of Intention Notice of Creditor's Commencement Proceedings" (" Notice of Intention "). A copy of a Notice of Intention is Annexure C to the statement of claim. No court proceedings have been instituted at the time a Notice is sent by Australialink. The respondents attack paragraphs of the Statement of Claim which relate to the representations which the ACCC alleges are made by the sending out of the LAN documents and by the Notice of Intention document, which are annexed to the Statement of Claim.
Case: Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13
Outcome: followed
As noted in Redberry , in Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13 (" Proctor &amp; Gamble Co v Reckitt Benckiser ") at [31] et seq, where Lewison J (Chancery Division Patents Court) considered and approved the Architectural Lighting observations, as did the Court of Appeal: see Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605 (" Proctor &amp; Gamble ") at [24], [25], [32] per Jacob LJ, with whom May and Dyson LJJ agreed. Jacob LJ noted (at [28]) "the informed user is alert to design issues and is better informed than the average consumer in trade mark law". 27 In Walton , the applicant sought to invalidate a poncho design registered by Zap Ltd ("Zap") on the grounds that it lacked novelty, in part because it copied her earlier poncho designs: see Walton at [3], [32]. Zap defended on the grounds that the basic design of the poncho had long been known, and thus there was limited freedom to design: see [15]. Applying his Honour Judge Fysh QC's definition of informed user, as approved by Lewison J in Proctor &amp; Gamble Co v Reckitt Benckiser ( Walton at [36]-[37]), the Registrar accepted Zap's submissions, concluding "I believe that an informed user would be aware that there is limited freedom to design a poncho which is not basically square or rectangular in shape": see Walton at [40]; also at [43]. Based primarily on a difference in neck design, the Registrar found that the Zap design would in fact create a different overall impression on an informed user and thus it was validly registered: see Walton at [39]-[45].
Case: Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605
Outcome: followed
As noted in Redberry , in Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13 (" Proctor &amp; Gamble Co v Reckitt Benckiser ") at [31] et seq, where Lewison J (Chancery Division Patents Court) considered and approved the Architectural Lighting observations, as did the Court of Appeal: see Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605 (" Proctor &amp; Gamble ") at [24], [25], [32] per Jacob LJ, with whom May and Dyson LJJ agreed. Jacob LJ noted (at [28]) "the informed user is alert to design issues and is better informed than the average consumer in trade mark law".