mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Outcome: considered
The parties agree that the principles in Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 apply in ascertaining whether there has been misleading or deceptive conduct in contravention of the Act or the Fair Trading Act . The subject matter of this litigation is bottled water. The conduct is tested as against the ordinary or reasonable member of the class of prospective purchasers of this product ( Campomar at [103]). A potential purchaser does not come to a decision with the benefit of argument as to the similarities and differences between two get-ups but is likely to make his or her decision in a relatively short period of time and in conditions which may vary ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [133]).
Case: TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43
Outcome: cited
Whether Dayals is passing off its goods as those of Natural Waters depends on the reputation attached to Fiji Water's identifying get-up so that it is distinctive of bottled water sold by Natural Waters; a representation by Dayals leading or likely to lead consumers to believe that Island Chill is the product of Natural Waters; and actual or probable damage ( Reckitt &amp; Colman Products Ltd v Borden Inc (1990) 17 IPR 1 at 7 per Lord Oliver; TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 at [25]; Sydneywide at [60]). Where a get-up of a product is distinctive of that product and its trade source, there may be passing off and contravention of the Act and the Fair Trading Act even though the products bear different brands or labels.
Case: The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407
Outcome: cited
The determination of passing off and of contravention of the Act and the Fair Trading Act is assessed as a matter of impression based on recollection of the Fiji Water get-up and the Island Chill get-up. Whether a get-up so nearly resembles another as to be deceptive or likely to deceive is a question for the Court ( Interlego at 387). The packaging must be viewed as a whole ( Sterling Winthrop Pty Limited v R &amp; C Products Pty Ltd (1994) ATPR 41,308 at 42,126). It is not a question of comparing the bottles side by side and engaging in a minute and detailed analysis of the similarities and differences. The observations of Windeyer J in The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 415 as to the assessment of deceptive similarity in a trade mark context are apposite. The goods in question are inexpensive consumer goods: bottled water, where the item is purchased for a relatively small price without long consideration and where the consumer is unlikely to engage in lengthy or detailed comparison of the respective get-ups ( Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 at 161). A consumer choosing between bottles of water on display would be likely to base the choice of purchase of his or her favoured bottled water product largely on recognition of the packaging.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1993) 33 FCR 397
Outcome: applied
The guiding principles which attend whether to grant leave to appeal are well settled: see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1993) 33 FCR 397 (Full Court). Having regard to what was said in that case, considerations to which the Court should ordinarily advert in deciding a leave to appeal application may be summarised as follows: (a) the prospects of success of the proposed appeal, i.e. whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court; and (b) whether substantial injustice would result were leave to appeal refused, supposing the decision to be wrong. 16 The Full Court's judgment in D&eacute;cor Corporation also serves as a reminder that these considerations are not exhaustive and in no way preclude regard to special considerations which might, in a particular case, tend either for or against a grant of leave to appeal. 17 Further, the very fact that Parliament has chosen in s 24 of the Federal Court of Australia Act to excise interlocutory judgments and orders from being the subject of an appeal as of right is itself eloquent. The making of a judicial value judgment in relation to whether an appeal ought to be permitted was plainly envisaged as a way of preventing indiscriminate appeals in respect of judgments and orders falling within the excised class. In that regard, both prior authority and instinct commend that there is a distinction to be drawn when considering an application for leave to appeal between an interlocutory judgment or order which determined a mere matter of practice and procedure and one which, at least in a practical sense, can be seen to have affected a substantive right, even if strictly not in a way that would render the judgment or order "final". There is obvious potential for too ready a grant of leave to appeal against a judgment or order of the former type to result in: (a) a postponement of a final determination of the substantive issues between the parties; (b) additional burdens in both legal expenses and emotion, the one not usually fully compensated by a costs order in favour of a successful Respondent; the other, even in that circumstance, for which such a Respondent is not at all compensated; (c) related oppression of a less economically (or emotionally) well resourced party at the behest of another party who is either better resourced or so bereft of resources as to be indifferent to potentially adverse costs consequences if an interlocutory appeal were unsuccessful. 18 Applying these guiding principles to the circumstances of this application, I am in no doubt that leave to appeal should be refused.
Case: Reichel v Magrath (1889) 14 App Cas 665
Outcome: cited
There has to be an end to litigation in the sense that, once an issue has been finally determined between particular parties, an attempt by the unsuccessful party again to agitate that issue against the successful party is subversive of the administration of justice. The authorities cited by her Honour, Reichel v Magrath (1889) 14 App Cas 665, at 668-669 and Thirteenth Corp v State [2006] FCA 979 ; (2006) 232 ALR 491 , at 500 exemplify that proposition.
Case: Thirteenth Corp v State [2006] FCA 979 ; (2006) 232 ALR 491
Outcome: cited
There has to be an end to litigation in the sense that, once an issue has been finally determined between particular parties, an attempt by the unsuccessful party again to agitate that issue against the successful party is subversive of the administration of justice. The authorities cited by her Honour, Reichel v Magrath (1889) 14 App Cas 665, at 668-669 and Thirteenth Corp v State [2006] FCA 979 ; (2006) 232 ALR 491 , at 500 exemplify that proposition.
Case: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
As to s 31A of the Federal Court of Australia Act , and as her Honour noted, the intent of that section is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities, such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. Her Honour adopted observations made by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. As so informed, her Honour approached the application on the basis that a reasonable prospect of success for the purposes of the section was one which was real, not fanciful or merely arguable. My approach would have been no different.
Case: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
As to s 31A of the Federal Court of Australia Act , and as her Honour noted, the intent of that section is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities, such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. Her Honour adopted observations made by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. As so informed, her Honour approached the application on the basis that a reasonable prospect of success for the purposes of the section was one which was real, not fanciful or merely arguable. My approach would have been no different.
Case: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
As to s 31A of the Federal Court of Australia Act , and as her Honour noted, the intent of that section is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities, such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. Her Honour adopted observations made by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. As so informed, her Honour approached the application on the basis that a reasonable prospect of success for the purposes of the section was one which was real, not fanciful or merely arguable. My approach would have been no different.
Case: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55
Outcome: cited
As to s 31A of the Federal Court of Australia Act , and as her Honour noted, the intent of that section is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities, such as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 , which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. Her Honour adopted observations made by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55) , have gained assistance from those observations. As so informed, her Honour approached the application on the basis that a reasonable prospect of success for the purposes of the section was one which was real, not fanciful or merely arguable. My approach would have been no different.
Case: Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339
Outcome: cited
In Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350 the High Court endorsed remarks made by Roxburgh J in Re A Debtor [1958] 1 Ch 81 at 99 as to what a debtor must show in order to demonstrate the existence of a valid set off or counterclaim for the purposes of the law of bankruptcy. In effect, it is incumbent upon a debtor to satisfy the Court that he or she has a reasonable prospect of success in respect of the alleged set off or counterclaim. This need not entail the bringing forward of all of the admissible evidence that may be necessary to establish such a claim. The debtor must though put before the Court sufficient material to show that, at least prima facie and in prospect, he or she has a reasonable chance of establishing the claim. This is how her Honour approached this aspect of the matter.
Case: Re A Debtor [1958] 1 Ch 81 at 99
Outcome: cited
In Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350 the High Court endorsed remarks made by Roxburgh J in Re A Debtor [1958] 1 Ch 81 at 99 as to what a debtor must show in order to demonstrate the existence of a valid set off or counterclaim for the purposes of the law of bankruptcy. In effect, it is incumbent upon a debtor to satisfy the Court that he or she has a reasonable prospect of success in respect of the alleged set off or counterclaim. This need not entail the bringing forward of all of the admissible evidence that may be necessary to establish such a claim. The debtor must though put before the Court sufficient material to show that, at least prima facie and in prospect, he or she has a reasonable chance of establishing the claim. This is how her Honour approached this aspect of the matter.
Case: Tuncak and Others v Young (1987) 14 ALD 286
Outcome: cited
The motion itself was filed in the appeal proceedings, and the question arises whether, if this were an exercise of the appellate jurisdiction of the Court I, as a single judge, would have power to make an order of the kind contemplated. I think that is highly questionable. There is, nevertheless, authority for the proposition, including my own decision in Tuncak and Others v Young (1987) 14 ALD 286, and that of Hely J in NAMU of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 999 , and the earlier decision of Toohey J in Bercove v Hermes (No 2) (1983) 51 ALR 105 that is it open to a single judge, in the exercise of the original jurisdiction of the Court and the application of the powers conferred upon judges of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), to make an interlocutory order to ensure that an appeal to the Full Court, if successful, would not be nugatory, notwithstanding that the proceedings at first instance had been dismissed by the order of another judge of the Court.
Case: Bercove v Hermes (No 2) (1983) 51 ALR 105
Outcome: cited
The motion itself was filed in the appeal proceedings, and the question arises whether, if this were an exercise of the appellate jurisdiction of the Court I, as a single judge, would have power to make an order of the kind contemplated. I think that is highly questionable. There is, nevertheless, authority for the proposition, including my own decision in Tuncak and Others v Young (1987) 14 ALD 286, and that of Hely J in NAMU of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 999 , and the earlier decision of Toohey J in Bercove v Hermes (No 2) (1983) 51 ALR 105 that is it open to a single judge, in the exercise of the original jurisdiction of the Court and the application of the powers conferred upon judges of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), to make an interlocutory order to ensure that an appeal to the Full Court, if successful, would not be nugatory, notwithstanding that the proceedings at first instance had been dismissed by the order of another judge of the Court.
Case: Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26
Outcome: cited
It is quite clear that each of Lane, Primmer and Kelly knew that Silvestri P/L had been engaged to do the excavation work. The opening exchange on 20 October 2003 showed that Lane was aware that the existing contractor had been sacked. Lane and Primmer knew of Antonio Silvestri's proposed involvement on 20 October 2003 and each of them saw Antonio Silvestri working on the site on 21 October 2003. It was obvious that that was the result of a contract for reward with LGB. Silvestri P/L was not a charitable organisation and LGB was not a mendicant. It is not necessary to prove that Lane, Primmer and Kelly had knowledge of the precise terms of the agreement ( J T Stratford &amp; Son Ltd v Lindley [1965] AC 269 per Lord Pearce at 332F G; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 293). The findings that I have already made involve each of Lane, Primmer and Kelly in deliberately taking steps to hinder or prevent Silvestri P/L from carrying out its contract with LGB and were, in fact, intended to cause Silvestri P/L and Antonio Silvestri to be banned from the site and the contract to be terminated. There could not be a clearer case than this of interference with contractual relations. There was no attempt to pursue a defence of justification. (See, generally, Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30; Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211; and Odco Pty Ltd 29 FCR 104 and the authorities referred to in those cases.)
Case: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211
Outcome: cited
It is quite clear that each of Lane, Primmer and Kelly knew that Silvestri P/L had been engaged to do the excavation work. The opening exchange on 20 October 2003 showed that Lane was aware that the existing contractor had been sacked. Lane and Primmer knew of Antonio Silvestri's proposed involvement on 20 October 2003 and each of them saw Antonio Silvestri working on the site on 21 October 2003. It was obvious that that was the result of a contract for reward with LGB. Silvestri P/L was not a charitable organisation and LGB was not a mendicant. It is not necessary to prove that Lane, Primmer and Kelly had knowledge of the precise terms of the agreement ( J T Stratford &amp; Son Ltd v Lindley [1965] AC 269 per Lord Pearce at 332F G; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 293). The findings that I have already made involve each of Lane, Primmer and Kelly in deliberately taking steps to hinder or prevent Silvestri P/L from carrying out its contract with LGB and were, in fact, intended to cause Silvestri P/L and Antonio Silvestri to be banned from the site and the contract to be terminated. There could not be a clearer case than this of interference with contractual relations. There was no attempt to pursue a defence of justification. (See, generally, Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30; Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211; and Odco Pty Ltd 29 FCR 104 and the authorities referred to in those cases.)
Case: Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22
Outcome: applied
Evidence and submissions as to damages are complete. A further hearing on penalties will be necessary. I will make no declarations or orders until all issues have been determined (cf Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443 ; (2001) 114 FCR 22 at [7] ). The proceeding will stand over to a date to be fixed. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 13 July 2007 Counsel for the Applicants: Mr RM Goot AM SC, Mr MJ Heath Solicitor for the Applicants: Minter Ellison Lawyers Counsel for the Respondents: Mr JH Pearce Solicitor for the Respondents: Taylor &amp; Scott Dates of Hearing: 9 13 and 19 20 October 2006 and 7 8 November 2006 Date of Last Submission: 5 December 2006 Date of Judgment: 13 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1047.html
Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162
Outcome: cited
It is unnecessary to explore the difficulties in the way of establishing liability in the Union for this particular offence, absent s 349 (cf Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162). 83 I find that the contract between LGB and Silvestri P/L was to carry out the whole of the excavation works required at the site for the works being conducted by LGB, subject to implied terms as to competence and progress. The fact that the remuneration was to be calculated on a per hour or per load basis does not detract from that conclusion.
Case: Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482
Outcome: cited
There are some questions as to the proper construction of the section. It is contended for the respondents that intention to make a false and misleading representation is a necessary element of the offence. There is no direct authority in favour of that proposition. It is submitted that the reasoning in relation to other sections included in Pt 10A would be applicable (cf BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [77] ; Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [70] [78]). Indeed, such authority as exists is against the proposition contended for by the respondents ( Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346 at [31] [34]; Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263, [2007] FCA 87 at [288] [289]; see also Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561; (1977) 31 FLR 129 per Bowen CJ at 134; Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439; (1977) 29 FLR 212). The presence of s 4(7) also tends against it. There is also a question as to whether the section only applies where the false or misleading representation about another's obligation to join an industrial association must be made to that other person. Graham J was of the opinion that the section was not so limited ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87 at [287] [291]). Although not raised here, there may also be a question as to the meaning of "obligation" does it refer to legal obligation or practical obligation?