mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McCormick &amp; Company Inc v McCormick [2000] FCA 1335 ; (2000) 51 IPR 102
Outcome: cited
The evidence necessary or sufficient to establish reputation to found a case for passing off and contravention of the TPA will depend upon various factors (see eg Natural Waters of Viti Limited v Dayals (Fiji) Artesian Waters Limited (2007) 71 IPR 571 at [58]-[59]). Reputation may be inferred from a high volume of sales and extensive advertising, without any other direct evidence (see in a different context, Kenny J in McCormick &amp; Company Inc v McCormick [2000] FCA 1335 ; (2000) 51 IPR 102 at [86] - [88] . In this proceeding, there are no sales or direct advertising or promotion of Hansen's product in Australia. Rather, the evidence relied upon is that of exposure to persons in Australia through the marketing strategy adopted by Hansen to reach its target demographic primarily in other countries.
Case: National Exchange Pty Ltd v Australian Securities &amp; Investments Commission (2004) 61 IPR 420
Outcome: cited
In 10th Cantanae Pty Ltd v Shoshana Pty Ltd (Sue Smith Case) (1987) 79 ALR 299 , the Full Court adopted the approach that for an applicant to establish a case for contravention of s 52 of the TPA, it must prove a 'significant' or 'substantial' proportion of persons within the relevant market would likely be misled or deceived. This was adopted in National Exchange Pty Ltd v Australian Securities &amp; Investments Commission (2004) 61 IPR 420 (per Jacobson and Bennett JJ at [70]-[71]). Whilst there may be some view to the contrary (see .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 , [25]-[26] per Finkelstein J), I will proceed to approach the question of the operation of the TPA by requiring it to be established that a significant or substantial proportion of persons who would be potential customers within Australia would be likely to be misled. Whilst some may consider this approach puts a greater burden than that considered by Hill J to be required, I am inclined to consider that the difference in approach is a matter of expression and not one of quantitative substance.
Case: R v Wood (1982) 76 Cr App Rep 23
Outcome: distinguished
In R v Wood (1982) 76 Cr App Rep 23 , the Lord Chief Justice rejected an argument that where a computer is used in the course of the production of final figures, those figures were hearsay, finding at 27 that: This computer was rightly described as a tool. It did not contribute its own knowledge. It merely did a sophisticated which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr Kellie whom the Crown called as a witness.
Case: Roach v Page (No 15) [2003] NSWSC 939
Outcome: applied
Bickfords contended that the documents in the three exhibits do not fall under the business records exception on the basis that they are not business records, but rather products of the business , in the sense considered by Sperling J in Roach v Page (No 15) [2003] NSWSC 939. Similarly, Bickfords submitted that the records were not internal ones and as such, as set out in ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 , they could not be regarded as business records under s 69. Additionally, Bickfords argued, the representations were prepared in contemplation of litigation and did not therefore fall within the business records exception. 133 The records referred to in s 69(1) of the Evidence Act are the documents a business generates in the course of, or for the purpose of the business, not documents which it may have or keep as the product of that business. The concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself: see Sperling J in Roach v Page [2003] NSWSC 939 ; ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [180] - [182] per Austin J. 136 Hansen contended that the contrast between the OzTAM reports and publications considered by Sperling J in Roach v Page was 'stark'. Hansen contended that it was not the function of OzTAM business to publish books, newspapers or other publications for wider dissemination for advertising or promotional purposes. 137 However, the fact is that the actual documents sought to be tendered in the three exhibits are the very documents the OzTAM business is providing as part of the product of its business to third parties. They were in fact purchased by Hansen's solicitors for the purposes of tendering in this proceeding. The fact that these documents may not be widely disseminated, or that their purpose is not to advertise, does not mean that the principle expressed by Sperling J does not apply to the tender of the documents in question. 138 Accordingly, I consider that the documents in the three exhibits are not admissible as business records. I do not need to consider whether the representations relied upon were prepared in contemplation of litigation.
Case: R W Miller &amp; Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152
Outcome: cited
Other authorities were relied upon by Hansen, but I do not consider they take the matter any further or specifically address the issue of the tender of the documents in the three exhibits, being extracts obtained by Hansen effectively of statistical information produced and created by and in the possession of OzTAM: see for example Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 ; R W Miller &amp; Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152; Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249; and Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 .
Case: Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249
Outcome: cited
Other authorities were relied upon by Hansen, but I do not consider they take the matter any further or specifically address the issue of the tender of the documents in the three exhibits, being extracts obtained by Hansen effectively of statistical information produced and created by and in the possession of OzTAM: see for example Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 ; R W Miller &amp; Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152; Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249; and Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 .
Case: Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657
Outcome: cited
Other authorities were relied upon by Hansen, but I do not consider they take the matter any further or specifically address the issue of the tender of the documents in the three exhibits, being extracts obtained by Hansen effectively of statistical information produced and created by and in the possession of OzTAM: see for example Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 ; R W Miller &amp; Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152; Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249; and Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 .
Case: Walton v R [1989] HCA 9 ; (1989) 166 CLR 283
Outcome: cited
I appreciate that the hearsay rule is not to be applied inflexibly. Chief Justice Mason, in Walton v R [1989] HCA 9 ; (1989) 166 CLR 283 , in so regarding the hearsay rule stated that: (w)hen the dangers which the [hearsay] rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Justice Deane made similar comments.
Case: Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150
Outcome: cited
I take the law to be set out in my judgment in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 at [18] - [28] . That judgment was subsequently followed at first instance in Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005. On appeal, the Full Court, at the very least, cited without disapproval the judgment in Erduran . See VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [13] in the judgment of Gray J and at [33]-[34] in the joint judgment of Sundberg and North JJ.
Case: Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005
Outcome: cited
I take the law to be set out in my judgment in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 at [18] - [28] . That judgment was subsequently followed at first instance in Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005. On appeal, the Full Court, at the very least, cited without disapproval the judgment in Erduran . See VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [13] in the judgment of Gray J and at [33]-[34] in the joint judgment of Sundberg and North JJ.
Case: VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Outcome: cited
I take the law to be set out in my judgment in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 at [18] - [28] . That judgment was subsequently followed at first instance in Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005. On appeal, the Full Court, at the very least, cited without disapproval the judgment in Erduran . See VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [13] in the judgment of Gray J and at [33]-[34] in the joint judgment of Sundberg and North JJ.
Case: Emanuel Management Pty Ltd v Foster's Brewing Group Ltd (2003) 178 FLR 1
Outcome: cited
The question of whether Damilock was insolvent at material times is to be determined objectively upon the whole of the admissible evidence: Emanuel Management Pty Ltd v Foster's Brewing Group Ltd (2003) 178 FLR 1 at [73 ff]. The decision is not necessarily about the directors' knowledge or the creditors' knowledge or their expectations or suspicions of insolvency. It is a matter to be determined objectively. It is to be determined on the circumstances as they were known or ought to have been known at material times, rather than with the benefit of hindsight: Lewis v Doran [2005] NSWCA 243 ; (2005) 54 ACSR 410 at [103] .
Case: Lewis v Doran [2005] NSWCA 243 ; (2005) 54 ACSR 410
Outcome: cited
The question of whether Damilock was insolvent at material times is to be determined objectively upon the whole of the admissible evidence: Emanuel Management Pty Ltd v Foster's Brewing Group Ltd (2003) 178 FLR 1 at [73 ff]. The decision is not necessarily about the directors' knowledge or the creditors' knowledge or their expectations or suspicions of insolvency. It is a matter to be determined objectively. It is to be determined on the circumstances as they were known or ought to have been known at material times, rather than with the benefit of hindsight: Lewis v Doran [2005] NSWCA 243 ; (2005) 54 ACSR 410 at [103] .
Case: Australian Securities and Investment Commission v Plymin (No 1) [2003] VSC 123 ; (2003) 46 ACSR 126
Outcome: discussed
It is generally, but not necessarily, the case that an inquiry into the insolvency or otherwise of a company at material times is assisted by considering various indicia of insolvency. In Australian Securities and Investment Commission v Plymin (No 1) [2003] VSC 123 ; (2003) 46 ACSR 126 , Mandie J at [386] referred to a number of indicia of insolvency. It is convenient to list them. I propose to consider those which are particularly relevant to the present circumstances. The indicia referred to by Mandie J were: &#8226; continuing losses; &#8226; liquidity ratios below one; &#8226; overdue Commonwealth and State taxes; &#8226; poor relationship with bank, including inability to borrow further funds; &#8226; no access to alternative finance; &#8226; inability to raise further capital; &#8226; suppliers placing company on cash on delivery or otherwise demanding special payments before resuming supply; &#8226; creditors unpaid outside trading terms; &#8226; issuing of post-dated cheques; &#8226; dishonoured cheques; &#8226; special arrangements with selected creditors; &#8226; solicitors' demands, summonses and the like; &#8226; payments to creditors of rounded amounts not reconcilable to specific invoices; and &#8226; inability to produce timely and accurate financial information to indicate trading performance and financial position, and to make reliable forecasts. In any particular case, one or more of those factors, or other factors, may have particular significance and one or more of them may not exist. The absence of one or more of those factors does not, of itself, establish solvency.
Case: Box Valley Pty Ltd v Kidd [2006] NSWCA 26 ; (2006) 24 ACLC 471
Outcome: referred to
In considering whether Damilock was able to pay its debts as and when they became due and payable, it is appropriate to have regard to its debts in the immediate future as well as its current debts. So much is clear from the use of the words "as they become due" in s 95A of the Act: see Lewis v Doran at [107] and Box Valley Pty Ltd v Kidd [2006] NSWCA 26 ; (2006) 24 ACLC 471 at [15] , [59]-[67], and [68]-[74].
Case: Sandell v Porter (1966) 115 CLR 66
Outcome: referred to
The cash flow test of insolvency focuses on the liquidity of a business. A balance sheet test of solvency, addressing the excess of assets over liabilities, may include assets which are not readily realisable so as to permit the payment of all debts as and when they fall due. On the other hand, insolvency means more than a mere temporary lack of liquidity but, as counsel for the liquidators put it, involves "an endemic inability to pay debts as and when they become payable": see eg Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 ; Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54].
Case: Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213
Outcome: referred to
The cash flow test of insolvency focuses on the liquidity of a business. A balance sheet test of solvency, addressing the excess of assets over liabilities, may include assets which are not readily realisable so as to permit the payment of all debts as and when they fall due. On the other hand, insolvency means more than a mere temporary lack of liquidity but, as counsel for the liquidators put it, involves "an endemic inability to pay debts as and when they become payable": see eg Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 ; Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. 44 In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.
Case: Iso Lilodw' Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561
Outcome: referred to
In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.
Case: Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425
Outcome: referred to
In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.
Case: Taylor v Carroll (1991) 6 ACSR 255
Outcome: referred to
In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.
Case: SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472
Outcome: cited
Accordingly his Honour dismissed the application for review of the Tribunal's decision, for reasons similar to those framed by Driver FM in SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [5] . 4 The matter came before me by way of a so-called amended notice of appeal (NSD 2193 of 2005), the purported grounds of appeal being as follows: '1. The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. 2. The appellant seeks leave to amend his appeal to challenge the delegate's decision. 3. The delegate of the Minister failed to have a regard to all of the information provided by the appellant. 4. The delegate of the Minister breached procedural fairness and natural justice.' 5 No particularity of those grounds was articulated by the appellant in the notice of appeal, nor in the course of his statements from the Bar Table. Without at least particularity or other explanation, those grounds are meaningless. It appears that he had consulted with a migration agent named Mollah, who was identified in the reasons for judgment of Mowbray FM, and that those grounds were provided by that migration agent to the appellant.
Case: Abraham v Attorney-General for the Commonwealth [2004] FCA 411
Outcome: cited
power conferred by O 52 r 38(1)(a) " must not be lightly exercised ": Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86 at 90 per Bowen CJ, Fisher and Lockhart JJ; Goldie v The Commonwealth of Australia [2004] FCA 973 at [16] per Carr J. It has further been recognised that the Court's power " to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay ": Hughes v Australian Competition and Consumer Commission [2004] FCA 1271 at [8] per Jacobson J. It is " exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a) ": Abraham v Attorney-General for the Commonwealth [2004] FCA 411 at [5] per Finn J.
Case: Allesch v Maunz [2000] HCA 40 , 203 CLR 172
Outcome: applied
the powers of the Court on appeal can only be exercised if there be appellable error. And, where an appeal is in the nature of a rehearing, the appellate Court can substitute its own decision on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40 at [23] , [2000] HCA 40 ; 203 CLR 172 at 180 to 181. Gaudron, McHugh, Gummow and Hayne JJ there made the following observations in relation to the powers of a Court when entertaining an appeal by way of a rehearing (references omitted): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. Although this was a case concerning the Family Court, s 27 of the Federal Court of Australia Act 1976 (Cth) is not materially different to the equivalent provision of the Family Law Act 1976 (Cth): Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75] , [2001] HCA 17 ; 205 CLR 507 at 533 per Gleeson CJ and Gummow J. The " proper role of an appellate court under s 25 of the Federal Court Act ... is ordinarily to correct error ": Sobey v Nicol [2007] FCAFC 136 at [72] , [2007] FCAFC 136 ; 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. It is not appropriate to treat an appeal "as though it were a new trial on the evidence and constrained merely by ... unassailable factual findings "; error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30] , [2001] FCA 1833 ; 117 FCR 424 at 438 per Allsop J (Drummond and Mansfield JJ agreeing).