mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: considered
Secondly, the appellant argued that the Tribunal had failed to make further inquiries in India. Had it done so, the appellant argued that it would have discovered his status in Kerala and it would have more clearly understood the political circumstances surrounding his membership of the Communist Party of India (Marxist) and the RSS party. Sections 424 and 427 (1)(d) of the Act both permit the Tribunal in its discretion to make further inquiries. However, it has been held that those provisions do not impose, generally speaking, any duty upon the Tribunal to make such inquiries. It may be that the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 provides the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries. It is doubtful however whether the principle in Prasad has survived the enactment of s 422B of the Act . 12 At the time of the Tribunal's decision, s 422B provided: Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 13 That provision is likely to have removed the operation of the Prasad doctrine. In any event, I do not think that the Prasad doctrine would have any applicability to the present facts. There were no circumstances calling for such an inquiry. Accordingly, I reject the argument that the Tribunal committed jurisdictional error by failing to make further inquiries in India. 14 Thirdly, the appellant argued that if he were now to be returned to India he might be killed. It seems to me that the Tribunal accepted the correctness of that proposition. In that circumstance, it is difficult to discern how there can be a jurisdictional error involved in the Tribunal's treatment of the matter. 15 Fourthly, the appellant argued that the facts which occurred before 1998 were not related to the settlement but occurred for Convention reasons. The Tribunal dealt with that matter by finding that the provisions in s 91R applied to them; in other words, it found that they were insufficiently important to amount to persecution in the relevant sense.
Case: Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2009] FCA 1019
Outcome: related
is an application for leave to appeal from a decision of a single judge of this Court made on 11 September 2009 ( Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2009] FCA 1019). The effect of that decision was to dismiss a Notice of Motion filed by the respondent below ( Servier ), in which Servier sought to amend Australian Patent No 2001276418 ( the AC patent ). In the proceedings below, the applicant there ( Apotex ) had applied for a declaration that the AC patent was invalid. Servier had then sued Apotex and others for infringement of the AC patent. The judgment in respect of which leave to appeal is sought finally determines the form of the claims of the AC patent, as between the parties to the proceedings and all other persons. It does, in that sense, affect the substantive rights of the respondent. If the present application for leave is refused, then the proceedings below will proceed to a hearing on validity and infringement, based on a set of claims which do not take into account the claims the subject of the amendment application. The parties have agreed that the appropriate course is for the application for leave to appeal and the appeal itself, should leave to appeal be granted, be listed for hearing together and as soon as possible. The reasons for this are obvious. Such an approach will save the parties both time and money. It will also minimise the risk that the Court will be required to rehear the validity and infringement claims should the appeal be successful.
Case: Bell v Queensland (2006) 71 IPR 139
Outcome: followed
I am entitled to have regard to that course of conduct. Indeed, s 4K(3) and (4) of the Crimes Act 1914 apply where a person has been charged with a number of offences against the same provision of a law of the Commonwealth. The Court is authorised to impose one penalty in respect of all of the offences, but that penalty is not to exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. In Bell v Queensland (2006) 71 IPR 139 at 140-141 [6]-[9] Kiefel J considered it appropriate to impose one penalty in respect of a series of offences similar to Mr Vu's; see also Hamm v Middleton (1999) 44 IPR 656 at 659 [15] per von Doussa J. 44 I am satisfied that Mr Vu has shown genuine contrition for his offending. Not only did that appear clearly from the report of the Probation and Parole Service, but in his evidence before me I consider him to have been genuinely remorseful and to have recognised that he has exposed himself to pay whatever penalty the court might extract from him as a result of his foolishness and dishonesty. 45 Mr Vu pleaded guilty at the first available opportunity. The police argues that his guilty plea must be seen in the context of an acknowledgment of the strength of the police case and a recognition of the inevitable.
Case: Chen v New South Wales Police Service (2003) 59 IPR 431
Outcome: discussed
In Chen v New South Wales Police Service (2003) 59 IPR 431 Jacobson J dealt with eight offences of infringement of copyright contrary to ss 132(1)(b) and (2A)(a) of the Act. In that case the offender had pleaded guilty before the magistrate to the eight offences and was then placed on a good behaviour bond for five years and ordered to pay a pecuniary penalty totalling $8,000. The penalty was payable in monthly instalments over a protracted period. The offender had sold counterfeit DVDs at a market on four occasions and had been found in possession of over 400 infringing CDs. And, at her brother's premises there were music CDs, DVDs, blank disks, paperwork and business cards in her name. She also had about 50 DVDs and two computers on which were found files of infringing films. The offender in that case was a single mother whose son had an illness and she had little means. His Honour came to the view that the penalty imposed was one which was proper and refused leave to appeal against the sentence. 60 In this matter, although Mr Vu's period of offending stretched over a considerable period of about 10 months, it involved him being a distributor, rather than a manufacturer, of the infringing copies. I have had regard to his genuine contrition, all of the circumstances that I have described more fully above, including his early plea of guilty, his partial co-operation, and his invidious position (which I do not regard, and which he does not ask me to regard, as an excuse but as a circumstance in which the offending occurred). I am satisfied that he is a man who has done something which he knows was inappropriate and he is very unlikely to re-offend. It would not be appropriate to sentence him to prison. Having regard to his means and the impact on him financially, the totality of the circumstances, including his criminality and the need for general deterrence, I am of opinion that I should allow the appeal. 61 The appropriate penalty which I consider should be imposed is a 3 year good behaviour bond with a self-surety in the sum of $1,000 conditional on Mr Vu paying a penalty of $5,000. He has indicated that he expects to be able to pay this by instalments of $200 per month commencing in November 2007. I have had regard to the fact that the police acknowledge that such a penalty is one within the range properly open to me. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 28 September 2007 Counsel for the Appellant: T Luckman Solicitor for the Appellant: Ledinh Lawyers Counsel for the Respondent: C Ng Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1508.html
Case: Markarian v R [2005] HCA 25 ; (2005) 215 ALR 213; (2005) 79 ALJR 1048
Outcome: followed
In determining the appropriate sentence to be imposed, the Court engages in a process known as instinctive synthesis. It is impossible to have regard to each of the matters which s 16A(2) requires be taken into account separately or to assign to each of them a particular figure or discount applicable to the offender, having regard to the particular circumstances each subsection addresses. Rather, the Court has to approach the determination of a sentence by taking into account all of the matters that are relevant, including those to which s 16A(2) refers, in addition to all other matters bearing on the sentence that will be imposed in all the circumstances of the offence or offences. In general, the sentencing court will reach a conclusion that a particular penalty is the one that should be imposed after weighing all of the relevant factors: Markarian v R [2005] HCA 25 ; (2005) 215 ALR 213 at 223 [37] ; [2005] HCA 25 ; (2005) 79 ALJR 1048 at 1057 [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 58 Because sentencing is a matter involving both an application of the general rule to be found in the statute imposing the penalty for the offence which creates it, and an assessment of the individual culpability of the defendant upon whose plea or finding of guilt a court is adjudicating, no other case can be a precise precedent for the appropriate penalty. Nonetheless, the courts must have regard to imposing penalties that are transparent and consistent and which the community can regard as an appropriate punishment having regard to the penalty which the Parliament has seen fit to impose as the maximum in the particular case. The mere fact that there is a maximum is not, of course, the only criterion by which the court imposes an appropriate penalty.
Case: Pontello v Ceselli (1989) 16 IRP 645
Outcome: distinguished
In Pontello v Ceselli (1989) 16 IRP 645 Wilcox J, on a guilty plea, sentenced an offender who had been knowingly concerned in making and possessing numerous illegal copies of video films for the purposes of commercial distribution. He had also been convicted and fined for offences under the Trade Marks Act 1955 (Cth) arising from the same circumstances. His Honour said ( Ceselli 16 IPR at 647): 'It is, however, appropriate for me to emphasise that the statute does provide for a gaol term for contraventions of s 132(1) and 132(2A). I am informed that, so far as counsel for the informant is aware, no person has yet been gaoled for a breach of those provisions; but the fact that a gaol term is provided by the legislation does indicate the seriousness with which the offences have been regarded by the legislature. It may well be that, in a serious case of multiple infringement of these provisions, it will be appropriate for a gaol sentence to be pronounced.' 36 The offender had made 35 copies of one title, 44 of another out of a total of 237 pirate tapes that had been seized. He had elaborate recording equipment at his home which enabled him to make multiple copies of individual tapes. Again that is distinct from the present case, albeit the defendant there was a video shop proprietor. 53 Nonetheless, as was said in 1989 by Wilcox J in Ceselli 16 IPR at 647 and by Sheppard J in Giannotis 16 IPR at 186, the time must surely come in this country where custodial sentences are appropriate for offences involving sale or hire of counterfeit DVDs and similar works. There are, however, factors in this case which have inclined me to the opinion that that is not an appropriate penalty in this matter, as I will explain below.
Case: Pontello v Giannotis (1989) 16 IPR 174
Outcome: discussed
In a related case, Pontello v Giannotis (1989) 16 IPR 174 at 186 Sheppard J observed that there was no doubt that piracy in the video industry was rife and that it was something that was well known. He referred to Wilcox J's remarks quoted above and also said that there was no doubt that this species of crime is often difficult to detect. Sheppard J said that the legislature had obviously taken a serious view of the offences, referring to the amendments that had been made in 1986 which provided for substantial increases in the penalties. Those penalties, I understand, obtained to the time of the present offences but have now been replaced by the sections to which I referred at the commencement of this judgment. As his Honour also noted (16 IPR at 187), the offence under s 132(2A)(a) was a serious one. DVDs have largely replaced videos as a means of viewing films. 53 Nonetheless, as was said in 1989 by Wilcox J in Ceselli 16 IPR at 647 and by Sheppard J in Giannotis 16 IPR at 186, the time must surely come in this country where custodial sentences are appropriate for offences involving sale or hire of counterfeit DVDs and similar works. There are, however, factors in this case which have inclined me to the opinion that that is not an appropriate penalty in this matter, as I will explain below.
Case: R v Carter (1992) 13 Cr App R (S) 576
Outcome: referred to
A number of jurisdictions have regarded the conduct of those who manufacture, sell or hire counterfeit works such as DVDs as meriting imprisonment. For example, in R v Carter (1992) 13 Cr App R (S) 576, the English Court of Appeal, Criminal Division dealt with a defendant who had been found in possession of over 200 infringing copies, 500 blank video tapes and three video recorders. Lord Lane CJ, Kennedy and Jowitt JJ noted that a suspended sentence of nine months imprisonment had been imposed and said ( Carter 13 Cr App R (S) at 377): '... [T]o make and distribute pirate copies of films is to steal from the true owner of the copyright, the property for which he has to expend money in order to possess it. It is an offence really of dishonesty.' I agree. In R v Kemp (1995) 16 Cr App R (S) 941 at 943 Russell LJ, Turner and Hooper JJ said: 'Offences of counterfeiting are offences which normally attract at least a short sentence of imprisonment. They are difficult, time consuming and expensive to detect. The owners of copyrights are entitled to be protected against their unlawful exploitation. They are entitled to have their commercial reputation protected against those who would seek unlawfully to damage it.'
Case: R v Duckett [1998] 2 Cr App R (S) 59
Outcome: distinguished
And, in R v Duckett [1998] 2 Cr App R (S) 59 at 60 Jowitt and Astill JJ sitting as the Court of Appeal, Criminal Division said: 'Infringement of copyright is widespread. It does, in an ethical sense, involve stealing other men's property, and in its cumulative effect is able to cause serious damage to legitimate commercial and proprietary interests. Although the applicant did not engage in this dishonest business in a substantial way, his activities and those of many like him contribute to the damage to which we have referred. A serious view is to be taken of the distribution by way of business and the recording for such distribution of pirated material which, if bought legitimately, would cost substantial sums of money.' 40 There, the appellant had been sentenced to 27 months imprisonment, in circumstances in which he actually manufactured illegal CD-ROM disks and was a ring leader of seven defendants in a counterfeiting business. Mr Vu's criminality is not of that order. 41 There are no other offences that are required or permitted to be taken into account.
Case: R v Kemp (1995) 16 Cr App R (S) 941
Outcome: referred to
A number of jurisdictions have regarded the conduct of those who manufacture, sell or hire counterfeit works such as DVDs as meriting imprisonment. For example, in R v Carter (1992) 13 Cr App R (S) 576, the English Court of Appeal, Criminal Division dealt with a defendant who had been found in possession of over 200 infringing copies, 500 blank video tapes and three video recorders. Lord Lane CJ, Kennedy and Jowitt JJ noted that a suspended sentence of nine months imprisonment had been imposed and said ( Carter 13 Cr App R (S) at 377): '... [T]o make and distribute pirate copies of films is to steal from the true owner of the copyright, the property for which he has to expend money in order to possess it. It is an offence really of dishonesty.' I agree. In R v Kemp (1995) 16 Cr App R (S) 941 at 943 Russell LJ, Turner and Hooper JJ said: 'Offences of counterfeiting are offences which normally attract at least a short sentence of imprisonment. They are difficult, time consuming and expensive to detect. The owners of copyrights are entitled to be protected against their unlawful exploitation. They are entitled to have their commercial reputation protected against those who would seek unlawfully to damage it.'
Case: Artistic Builders Pty Ltd v Elliott &amp; Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565
Outcome: cited
In forming a judgment as to whether a receiver took all reasonable care as required by s 420A , it is necessary to have regard to the sale process adopted by the receiver. The issue to be determined is whether that process was not one where all reasonable care was taken to sell the property for its market value, whatever that value was, or alternatively for the best price reasonably obtainable ( Artistic Builders Pty Ltd v Elliott &amp; Tuthill (Mortgages) Pty Ltd (2002) 10 BPR 19,565 at [126]). 54 The respondents contended that s 420A requires care to be taken in relation to the price at which any sale of property of a corporation is in fact made and imposes no obligation of care in relation to potential sales not made. On this basis they argued that s 420A had no relevance to the letter dated 5 May 2000 by which IHL's offer to purchase the 49 units was rejected.
Case: Expo International Pty Ltd (Receivers and Managers Appointed) (In Liq) v Chant [1979] 2 NSWLR 820
Outcome: cited
The relevant authorities indicate that the general law duties of a receiver when exercising a power of sale are analogous to those of a mortgagee (see, for example, Expo International Pty Ltd (Receivers and Managers Appointed) (In Liq) v Chant [1979] 2 NSWLR 820). As I observed in Gomez v State Bank of NSW Ltd [2001] FCA 1059 at [10] , that duty is a duty to act in good faith, without wilfully or recklessly sacrificing the interests of the mortgagor. The principle underlying the duty is that of 'unconscionability' ( Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731 per McLelland CJ in Eq).
Case: Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699
Outcome: considered
I am inclined to agree with the approach adopted in GE Capital Australia v Davis [2002] NSWSC 1146 ; (2002) 180 FLR 250, and approved in Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114 ; (2004) 60 NSWLR 646 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2005) 51 ACSR 699, that the effect of s 420A is to substitute a statutory test of liability for the traditional test when determining whether a receiver or mortgagee has breached its general law duty in the exercise of a power of sale. However, the findings of fact made by me in this matter render it unnecessary for me to express a concluded view on this question. 52 As Dodds-Streeton J observed in Florgale Uniforms Pty Ltd v Orders at [410]: 'A breach of s 420A is not established merely because market value (where it exists) or the best price reasonably obtainable is not achieved. Rather, a breach of s 420A requires, in terms, a failure by the receiver to take all reasonable care to sell the property for not less than market value or the best price that is reasonably obtainable having regard to the circumstances existing when the property is sold.'
Case: Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477
Outcome: cited
A further aspect of Deangrove's complaint regarding the 5 May 2000 letter is that Mr Buckby acted prematurely in rejecting IHL's offer outright on 5 May 2000 given the state of negotiations with Culley and Valemed. As the respondents did not hold a contract signed by Culley or Valemed for the purchase of the 49 units, it can be seen, with the benefit of hindsight, that a more cautious course of action might have been for Mr Buckby to avoid rejection of the IHL offer while letting IHL know that other parties were expressing interest in purchasing the units on terms more favourable to Deangrove. However, Mr Buckby is not to be criticised for seeking to bring IHL and Culley into competition as potential purchasers (see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 per Mason J at 509). 67 I accept the evidence of Mr Buckby that as at 3 May 2000 he remained interested in negotiating with IHL in respect of the 49 units (albeit that he doubted IHL's capacity to complete) and did not intend to reject the possibility of further dealing with IHL. I further accept Mr Buckby's evidence that the purpose behind the letter dated 5 May 2000 was to encourage IHL to lift its offer for the 49 units and that he hoped IHL would come back with an offer which matched the superior Culley offer. As Deangrove itself stressed, IHL apparently had good reason to be interested in purchasing the 49 units; it had effectively paid a deposit on the units by causing Islands to allot 7 323 785 shares to a nominee of Deangrove. Additionally, it had paid significant amounts by way of interest to the Bank. I therefore accept that Mr Buckby had reasonable grounds for believing, as I find that he did, that if IHL genuinely wished to purchase the 49 units it would respond to the letter of 5 May 2000 with a counter offer. 68 In addition to their submissions on each aspect of Deangrove's complaint, the respondents contended that they are entitled to rely on the business judgment rule in s 180(2) of the Act. It is not necessary for me to express a concluded view on whether the rule in s 180(2) has an application in respect of the duty imposed by s 420A. Deangrove placed reliance on s 180 as well as on s 420A. I find that in authorising the sending of the letter of 5 May 2000 Mr Buckby made a business judgment within the meaning of s 180(3) of the Act. I am satisfied that, within the meaning of s 180(2) , he: (a) made the judgment in good faith for the proper purpose of seeking to maximise the amount to be received by Deangrove on the sale of the units; (b) did not have a personal interest in the subject matter of the judgment; (c) informed himself about the subject matter of the judgment to the extent that he reasonably believed to be appropriate; and (d) rationally believed that the judgment was in the best interests of Deangrove.