mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 
Outcome: cited
FKP submitted that the creation of intellectual property rights in contravention of the legal or equitable rights of a person can give rise to a constructive trust in favour of that person. Reference was made to what was said by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 at 246. In an appropriate case, so much may be conceded. Reference was also made to what was said by Williams J in dissent in Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50 ; (1943) 68 CLR 525 at 546. 23 Spirits submitted that FKP's motion for leave to amend its FACC by filing a pleading in the form of the draft SFACC should be refused for the following three reasons: (a) FKP's proposed amendment is so obviously futile that it would be struck out had it appeared in the original pleading; there were at least two elements to this an alleged mistaken reliance on s 44 of the Act and the absence of any pleading that, by making the trade mark applications, Spirits has invaded any presently existing legal or equitable right of FKP, or has breached any alleged obligation owed to FKP, such as would be necessary to attract any principle in the terms stated in Lenah Game Meats ; (b) to allow the amendment would lead to substantial prejudice being suffered by Spirits which could not be cured by an order for costs, because registration of the trade mark applications would be held up indefinitely, pending the outcome of this (already lengthy and complicated) proceeding; and (c) there are powerful considerations militating against an exercise of the Court's discretion in favour of allowing the amendment. 24 Each of these reasons was elaborated on in Spirits' written and oral submissions, but it is the reliance on s 44 of the Act in the pleadings which are at the forefront of Spirits' argument which is put in the following way. 25 Paragraphs [68] [70] of the draft SFACC, which lead up to para [71] plead that: (a) the Stolichnaya trade mark applications are substantially identical with or deceptively similar to each of the Stolichnaya Label Mark, the Stolichnaya Word Mark, the Stoli Word Mark, the Ohranj Label Mark, the Ohranj Word Mark and the Blue Salyt Mark ('the Stolichnaya currently disputed marks') (para [68] of the draft SFACC); (b) the Stolichnaya trade mark applications are in relation to similar goods to the Stolichnaya currently disputed marks (para [69] of the draft SFACC); and (c) each of the Stolichnaya trade mark applications has a priority date which is not earlier than the priority date for the Stolichnaya currently disputed marks (para [70] of the draft SFACC).
Case: Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50 ; (1943) 68 CLR 525
Outcome: cited
FKP submitted that the creation of intellectual property rights in contravention of the legal or equitable rights of a person can give rise to a constructive trust in favour of that person. Reference was made to what was said by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 at 246. In an appropriate case, so much may be conceded. Reference was also made to what was said by Williams J in dissent in Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50 ; (1943) 68 CLR 525 at 546.
Case: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1025
Outcome: cited
It is common ground that the requirements for the Court to grant leave to amend are accurately set out in a passage from SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1035 at [14] [18] in relation to an application by Spirits to amend: '[14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 rule 2(2) of the Rules makes explicit reference to this principle: 'All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.' [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths.' 13 FKP's constructive trust claim is pleaded in the following terms. 14 First, the trade mark applications are derivative of the currently disputed marks in that they incorporate the words STOLICHNAYA, STOLI or MOSKOVSKAYA, and are sought to be registered in respect of 'similar goods', within the meaning of s 44 of the Act, as the goods in respect of which those trade marks are registered.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 Brennan CJ, Toohey, McHugh and Gummow JJ referred to the practical constraints on judicial review. They noted that a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons, they said, for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. They cited an earlier decision of the Full Court of this Court: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 19 Brennan CJ, Toohey, McHugh and Gummow JJ also said that this was a well-settled proposition which recognised that in reality the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Their Honours warned against the Court, on judicial review, turning the process into a review on the merits of the decision.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: followed
More recently in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 598 [25] , Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that what is required by procedural fairness is a fair hearing, not a fair outcome and that it was not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question was about whether the Tribunal's processes, not its actual decision, were in accordance with law. 21 Here, there is not the slightest doubt that Mr Goo gave to the Tribunal for the purpose of his application for review the information in the website printout of 2 May 2005. It said that he was the production manager of DSP. That information was congruent with and identical to the information in the website printout of 4 September 2002, albeit that the two printouts contained other information which was different.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: applied
In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ), Gibbs CJ at 199 in a frequently quoted passage said: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or course depend on all the circumstances. That passage was referred to with approval by the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ) at [102]-[103].
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: followed
In Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ( Taco ), in the joint judgment of Deane and Fitzgerald JJ, their Honours at 200 said: In truth, of course, no conduct can mislead or deceive unless the representee labours under some erroneous assumption. Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them. The nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should properly be categorized as misleading or deceptive or as likely to mislead or deceive. Again, that passage was cited with apparent approval by the High Court in Campomar at [104]. 90 Deane and Fitzgerald JJ in Taco at 202 pointed out the difficulty arising in a case involving s 52 of the TP Act (a civil claim alleging misleading or deceptive conduct) of determining whether the alleged conduct contains or conveys a misrepresentation, and of the significance to that question of evidence from one or more persons that they were in fact led into error. Their Honours said that the latter question, namely whether actual evidence of being misled is necessary, should be answered in the negative. Such evidence is helpful but not necessary. Their Honours continued: ... whether or not conduct amounts to misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances. 92 In Campomar , the High Court then said at [105]: The initial question which must be determined was whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. Their Honours emphasised at [106] as had been said in Taco Bell at 201, that the question whether particular conduct causes confusion or wonderment, or is misleading or deceptive, cannot be substituted for the question whether the conduct answers the statutory description contained in the section under consideration.
Case: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73
Outcome: followed
Their Honours then provided certain guidance in considering and determining whether the suggested misrepresentation has been made, and is or is likely to be misleading or deceptive of the public. The first item of guidance was to identify the relevant section or sections of the public by reference to whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested. The second, having identified the relevant section of the public, was to consider the issue by reference to all who come within it, "including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations". That quotation was adopted from the judgment of Lockhart J in Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93. In Campomar , the High Court confirmed at [105] that the Court may well decline to regard as controlling the application of s 52 assumptions by persons whose reactions are "extreme or fanciful".
Case: Knight v R [1992] HCA 56 ; (1992) 175 CLR 495
Outcome: followed
The defendant did not have any onus of demonstrating that an understanding of the Christmas catalogue consistent with innocence was available: see Knight v R [1992] HCA 56 ; (1992) 175 CLR 495 at 503. The prosecution had to prove beyond reasonable doubt that the false or misleading representations were made as it alleged. In my judgment, for the reasons referred to, the prosecution has proved that. 108 I have considered whether there were other reasonably possible "explanations consistent with innocence" (words used by the defendant in its written submission) which could be drawn from the relevant sections of the Christmas catalogue. For the reasons I have given, the fact that there may have been other meanings drawn by some consumers, with different degrees of knowledge or understanding, does not diminish my conclusion beyond reasonable doubt that the alleged representation was made. As I have said, s 75AZC(1) does not require that the representation must be so understood by every consumer or potential consumer. 109 The defendant suggested that the strike out price might have conveyed the defendant's previous or normal ticketed price, or a competitor's price, or the value of the relevant item of jewellery. For the reasons already given, even if some consumers or potential consumers might reasonably have so understood what was represented by the relevant parts of the Christmas catalogue in all the circumstances, that would not mean that the representation which I have identified was not made.
Case: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500
Outcome: considered
For the sake of completeness, I record that I have also considered the cases under s 53(e) of the TP Act to which I was referred. Each was decided on its own particular facts and is not, in my view, of direct assistance in deciding whether the prosecutor has made out the case. That depended on whether, judged objectively, the representations were made by the defendant in all the circumstances by the relevant parts of the Christmas catalogue. However, I mention briefly those cases: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 ( Cue Design ) and Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 ( Allans ). Each of those cases concerned a prosecution under s 79(1) of the TP Act for a contravention of s 53(e) of that Act (that is the regime which existed prior to the introduction of Pt VC). Each involved pricing representations. In the case of Cue Designs , there was a price tag with a higher price which was crossed out together with a representation as to a lower price in relation to items of apparel. It was found that a reasonable person would be led to believe that the items of apparel had previously been offered for sale at the higher price marked on the tag and were now being offered for sale at the lower price. It is therefore somewhat different from the present case where the relevant allegation is that the strike through price was the price at which the particular items of jewellery might be purchased other than during the sale period, and so provided an indication of the saving available during the sale period. In Cue Design the higher price had not previously been the price at which the items of apparel had been offered for sale. In any event, in that case there was a guilty plea to the charges and the case concerned penalty. Similarly in Allans : the representation was that there was a narrow window of opportunity in the Christmas lead up period when bargains of a very substantial nature could be obtained on Allans' musical goods by paying a much lower price in that period than that which had been paid in circumstances where a purchase was made before the beginning of that period. In other words, the representation in that case was as to what had previously been paid or was expected to be paid by reason of the crossed through price. Again, a plea of guilty was made in relation to those charges. Finally, I note Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182. It was also a prosecution under s 79 for contraventions of s 53(e) of the TP Act. The prosecution was summarily dismissed. In that case, the price comparators were viewed in the context of extensive evidence to which the primary judge referred, so that upon the whole of the evidence the contrasting price was not misleading or deceptive. It was a decision on its particular facts also.
Case: Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552
Outcome: considered
For the sake of completeness, I record that I have also considered the cases under s 53(e) of the TP Act to which I was referred. Each was decided on its own particular facts and is not, in my view, of direct assistance in deciding whether the prosecutor has made out the case. That depended on whether, judged objectively, the representations were made by the defendant in all the circumstances by the relevant parts of the Christmas catalogue. However, I mention briefly those cases: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 ( Cue Design ) and Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 ( Allans ). Each of those cases concerned a prosecution under s 79(1) of the TP Act for a contravention of s 53(e) of that Act (that is the regime which existed prior to the introduction of Pt VC). Each involved pricing representations. In the case of Cue Designs , there was a price tag with a higher price which was crossed out together with a representation as to a lower price in relation to items of apparel. It was found that a reasonable person would be led to believe that the items of apparel had previously been offered for sale at the higher price marked on the tag and were now being offered for sale at the lower price. It is therefore somewhat different from the present case where the relevant allegation is that the strike through price was the price at which the particular items of jewellery might be purchased other than during the sale period, and so provided an indication of the saving available during the sale period. In Cue Design the higher price had not previously been the price at which the items of apparel had been offered for sale. In any event, in that case there was a guilty plea to the charges and the case concerned penalty. Similarly in Allans : the representation was that there was a narrow window of opportunity in the Christmas lead up period when bargains of a very substantial nature could be obtained on Allans' musical goods by paying a much lower price in that period than that which had been paid in circumstances where a purchase was made before the beginning of that period. In other words, the representation in that case was as to what had previously been paid or was expected to be paid by reason of the crossed through price. Again, a plea of guilty was made in relation to those charges. Finally, I note Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182. It was also a prosecution under s 79 for contraventions of s 53(e) of the TP Act. The prosecution was summarily dismissed. In that case, the price comparators were viewed in the context of extensive evidence to which the primary judge referred, so that upon the whole of the evidence the contrasting price was not misleading or deceptive. It was a decision on its particular facts also.
Case: Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182
Outcome: considered
For the sake of completeness, I record that I have also considered the cases under s 53(e) of the TP Act to which I was referred. Each was decided on its own particular facts and is not, in my view, of direct assistance in deciding whether the prosecutor has made out the case. That depended on whether, judged objectively, the representations were made by the defendant in all the circumstances by the relevant parts of the Christmas catalogue. However, I mention briefly those cases: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 ( Cue Design ) and Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 ( Allans ). Each of those cases concerned a prosecution under s 79(1) of the TP Act for a contravention of s 53(e) of that Act (that is the regime which existed prior to the introduction of Pt VC). Each involved pricing representations. In the case of Cue Designs , there was a price tag with a higher price which was crossed out together with a representation as to a lower price in relation to items of apparel. It was found that a reasonable person would be led to believe that the items of apparel had previously been offered for sale at the higher price marked on the tag and were now being offered for sale at the lower price. It is therefore somewhat different from the present case where the relevant allegation is that the strike through price was the price at which the particular items of jewellery might be purchased other than during the sale period, and so provided an indication of the saving available during the sale period. In Cue Design the higher price had not previously been the price at which the items of apparel had been offered for sale. In any event, in that case there was a guilty plea to the charges and the case concerned penalty. Similarly in Allans : the representation was that there was a narrow window of opportunity in the Christmas lead up period when bargains of a very substantial nature could be obtained on Allans' musical goods by paying a much lower price in that period than that which had been paid in circumstances where a purchase was made before the beginning of that period. In other words, the representation in that case was as to what had previously been paid or was expected to be paid by reason of the crossed through price. Again, a plea of guilty was made in relation to those charges. Finally, I note Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182. It was also a prosecution under s 79 for contraventions of s 53(e) of the TP Act. The prosecution was summarily dismissed. In that case, the price comparators were viewed in the context of extensive evidence to which the primary judge referred, so that upon the whole of the evidence the contrasting price was not misleading or deceptive. It was a decision on its particular facts also.