mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18
Outcome: applied
the appellants submit that the Tribunal applied an incorrect test, it is clear from the Tribunal decision that it recognised that it was necessary to ascertain whether it was reasonable for the appellants to relocate in their country to a region where objectively there was no appreciable risk of the occurrence of the feared persecution ( SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 at [23] [24]; SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 at [14] ). The appellants criticise the Tribunal's further conclusion that the appellants would not need to surrender any fundamental rights that are currently protected by the Convention categories if they were to relocate. They say that this indicates that the Tribunal misdirected itself as to the test to be applied and failed to ascertain whether it was reasonable for the appellants to relocate in a practical sense. I accept the Minister's submission that this aspect of the Tribunal's reasons was directed to the considerations described in SZATV at [32]. It is clear that this was an additional consideration taken into account by the Tribunal in order to deal not only with the question of reasonableness of relocation but also with any suggestion, although not advanced, that the appellants would give up such fundamental rights as a price of relocation. I am not satisfied that the Tribunal applied the wrong test in assessing reasonableness. The test for relocation is whether it is reasonable in the sense of being practicable in the particular circumstances of the particular applicant ( SZATV at [24]). The answer to that question, in turn, depends upon the framework set by the particular objections raised to relocation (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 ; (2009) 174 FCR 415 at [124] per Tracey and Foster JJ).
Case: SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660
Outcome: cited
the appeal to the Federal Magistrates Court, the appellants were represented by counsel. Federal Magistrate Cameron found no error in the approach of the Tribunal, either in respect of the claim of inadequate state protection or in respect of the issue of relocation ( SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617). Further, his Honour noted that the two grounds raised by the appellants provided separate bases for the Tribunal's decision. As his Honour said, it followed that as long as one of those grounds was not affected by jurisdictional error, the decision was not liable to be set aside ( SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23] ). As the grounds for the application before Cameron FM form the basis of the grounds of appeal, I shall deal with them in greater detail in the consideration of the notice of appeal. The notice of appeal
Case: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51
Outcome: referred to
the appellants submit that the Tribunal applied an incorrect test, it is clear from the Tribunal decision that it recognised that it was necessary to ascertain whether it was reasonable for the appellants to relocate in their country to a region where objectively there was no appreciable risk of the occurrence of the feared persecution ( SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18 at [23] [24]; SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 233 CLR 51 at [14] ).
Case: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 ; (2009) 174 FCR 415
Outcome: applied
am not satisfied that the Tribunal applied the wrong test in assessing reasonableness. The test for relocation is whether it is reasonable in the sense of being practicable in the particular circumstances of the particular applicant ( SZATV at [24]). The answer to that question, in turn, depends upon the framework set by the particular objections raised to relocation (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 ; (2009) 174 FCR 415 at [124] per Tracey and Foster JJ).
Case: SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617
Outcome: affirmed
the appeal to the Federal Magistrates Court, the appellants were represented by counsel. Federal Magistrate Cameron found no error in the approach of the Tribunal, either in respect of the claim of inadequate state protection or in respect of the issue of relocation ( SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617). Further, his Honour noted that the two grounds raised by the appellants provided separate bases for the Tribunal's decision. As his Honour said, it followed that as long as one of those grounds was not affected by jurisdictional error, the decision was not liable to be set aside ( SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23] ). As the grounds for the application before Cameron FM form the basis of the grounds of appeal, I shall deal with them in greater detail in the consideration of the notice of appeal. The notice of appeal
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: considered
Counsel also contend that Mr Hadgkiss's failure to give evidence in regard to the changes to the investigation is significant. Counsel submitted that the inference of an improper purpose raised, so it is said, by the changes to the investigation are not rebutted by Mr Hadgkiss and therefore, the inference should be accepted by the Court; see Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel submit it was not sufficient for the ABCC's solicitor, through the admission of her letter asserting a changed position, to rebut the inference without Mr Hadgkiss deposing to the changed position himself. 36 Counsel also submit that there is nothing on the face of the flyer that would support an allegation of breach of s 816. Counsel suggested that the better construction of the flyer was that it admonished people who co-operated with the ABCC rather than those who gave evidence or intended to give evidence to the AIRC, as the flyer says nothing about AIRC proceedings. They contend that a substantial purpose of the investigation is to investigate lack of co-operation with the ABCC.
Case: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: applied
As Gaudron J said in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672: An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power...
Case: The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175
Outcome: applied
Justice Tamberlin (with whom Branson and Finn JJ agreed on that issue) applied that approach in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [126] to [127]. His Honour also referred to "the test of substantiality necessary to establish improper purpose" referred to in Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106. In Thompson at 106, Williams, Webb and Kitto JJ said that a purpose is an "ulterior" one: ...if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale.
Case: Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87
Outcome: applied
Justice Tamberlin (with whom Branson and Finn JJ agreed on that issue) applied that approach in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [126] to [127]. His Honour also referred to "the test of substantiality necessary to establish improper purpose" referred to in Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106. In Thompson at 106, Williams, Webb and Kitto JJ said that a purpose is an "ulterior" one: ...if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale. 39 To meet the Thompson test of substantiality, the applicants must prove that the investigation by the ABCC into alleged contraventions of s 816 of the WR Act would not have been commenced had it not been for the desire to question union officials about their lack of co-operation or encouraging lack of co-operation with the ABCC. 40 The evidence can be reconciled with the proper exercise of power. Section 52 of the BCII Act has been engaged because Mr Hadgkiss is investigating an alleged contravention of a designated building law by building industry participants. The particulars given in the notices to attend for questioning refer to alleged breaches of s 816. It is not to the point that the allegations as particularised may be weak or that the flyer relied upon may be open to an explanation not related to s 816. 41 Further the test of substantiality is not met. The evidence does not support the proposition that the investigation would not have occurred but for a desire to question union officials about their attitude to co-operation with the ABCC. The 29 October 2007 notice to Mr Washington and Mr Balta make serious allegations about the conduct of Mr Setka with respect to Mr Peterson and Mr Broadhead which seek to connect that conduct with their provision of information to the AIRC and appearances before it.
Case: AG Spalding &amp; Bros v AW Gamage Ltd (1915) 84 LJ Ch 449
Outcome: cited
For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&amp;G 896 at 904; [43] ER 351 at 354: AG Spalding &amp; Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ. 57 Lord Parker identified the basis of a passing off action as a false representation by the defendant that his goods were the plaintiff's. In Campomar 202 CLR at 88-89 at [109]-[110] the High Court recognised that the range of the defendant's conduct which could constitute passing off included inducing consumers to believe that the defendant's goods or services had an association, quality or endorsement which belonged, or would belong, to the goods or services of or associated with the plaintiff. As Lord Parker recognised, relevantly here, the point to be decided is whether, having regard to all the circumstances of the case, the use by the defendant in connection with the goods of the get-up in question, impliedly represents the defendant's goods to be goods of the plaintiff or associated with the plaintiff, whether generally or in respect of a particular class or quality. In other words, the question is whether the defendant's use of the get-up is calculated to deceive. He pointed out that it would be impossible to enumerate or classify all the possible ways in which a man may make the false representation relied on: Spalding 84 LJ Ch at 450; see too Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 at 369-370 per Beaumont, Branson and Lindgren JJ; ConAgra 33 FCR at 356 per Gummow J.
Case: Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34 ; (1927) 40 CLR 43
Outcome: cited
In this area of the law the courts constantly endeavour to keep pace with the progress of trade by adapting fundamental doctrines to advancing methods and changing circumstances: Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34 ; (1927) 40 CLR 43 at 59-60 per Isaacs ACJ; ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 356 per Gummow J; Campomar 202 CLR at 88 [109]. 56 For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&amp;G 896 at 904; [43] ER 351 at 354: AG Spalding &amp; Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ.
Case: Apand Pty Ltd v The Kettle Chip Co Ltd (1994) 52 FCR 474
Outcome: cited
Mere proof of the fact that a person has deliberately copied the name or get-up of a trade rival does not of itself establish a contravention of s 52 or a passing off or goods or services: Apand Pty Ltd v The Kettle Chip Co Ltd (1994) 52 FCR 474 at 496 per Lockhart, Gummow and Lee JJ. In ConAgra 33 FCR at 374, Gummow J said "[d]eliberate copying does not necessarily indicate fraud. A notable example is provided by Cadbury Schweppes [[1980] 2 NSWLR 851]". And, Lockhart J said ( ConAgra 33 FCR at 345: French J at 377 agreed with both Lockhart J and Gummow J): But deliberate copying of the plaintiff's goods does not always evidence an intention to deceive; it may indicate nothing more than realisation that the plaintiff has a useful idea which the defendant can turn to his own advantage, though not intending to pass off his goods as those of the plaintiff.
Case: Burgess v Burgess (1853) 22 LJ Ch 675
Outcome: cited
For over 150 years it has been the law that "nobody has any right to represent his goods as the goods of somebody else" per Turner LJ in Burgess v Burgess (1853) 22 LJ Ch 675 ; 3 De GM&amp;G 896 at 904; [43] ER 351 at 354: AG Spalding &amp; Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 per Lord Parker of Waddington (with whom Viscount Haldane LC, Lord Atkinson and Lord Sumner concurred): Angelides 40 CLR at 81 per Rich and Starke JJ.
Case: Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2007] FCAFC 70 ; (2007) 159 FCR 397
Outcome: referred to
In Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2007] FCAFC 70 ; (2007) 159 FCR 397 at 418-419 [96] - [99] Black CJ, Emmett and Middleton JJ observed that the principles relating to passing off do not necessarily require a plaintiff to establish an exclusive reputation in relation to the use of a particular colour, in that case, purple. They said that the question was whether the plaintiff could establish facts that demonstrate that a particular use by the defendant of the colour was likely to mislead or deceive consumers into believing that there was relevant connection between the defendant and the plaintiff or their respective products: Darrell Lea 159 FCR at 418 [96]; see too Office Cleaning 63 RPC at 42 per Lord Simonds. They observed that both in the context of Pt V of the Trade Practices Act and the common law tort of passing off, trade indicia other than names and logos can become associated with a particular trader, so that use by another trader could give rise to misleading or deceptive conduct or passing off. They said ( Darrell Lea 159 FCR at 418 [97]): If particular branding elements used by a trader have been identified in a special way with that trader in the minds of the members of the public, there may be misleading or deceptive conduct by reason of the appropriation of those particular branding elements by another trader. 73 Black CJ, Emmett and Middleton JJ said, obiter, that whether or not there was a requirement for some exclusive reputation as an element in the common law tort of passing-off, Pt V of the Trade Practices Act did not include such a requirement. Under the Act, the question is whether the use of the particular get-up or name by an alleged wrongdoer in relation to his product is likely to mislead or deceive persons familiar with the claimant's product to believe that the two products are associated, having regard to the state of knowledge of consumers in Australia of the claimant's product: Darrell Lea 159 FCR at 419 [99].
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 9) [2008] FCA 470
Outcome: cited
Ricegrowers has not demonstrated that Real Foods' use of its packaging was calculated or likely to lead the ordinary reasonable consumer to believe that any of the three corn thin flavoured corn cakes were made by or in some way associated with Ricegrowers or its SunRice products (the sour cream and chives, or sea salt and balsamic vinegar thin flavoured rice cakes or the nacho cheese flavoured corn cake): Darrell Lea 159 FCR at 418-419 [96]-[99]; Office Cleaning 63 RPC at 42. The ordinary reasonable consumer would not believe that, to the extent that the packaging of the flavoured Real Foods products was similar, any of those packages emanated from or were in any way associated with Ricegrowers or SunRice: Campomar 202 CLR at 88-89 [109]-[110]; Cadbury Schweppes [1980] 2 NSWLR at 858 [22]; Borden [1990] 1 WLR at 506F-G; Payton 17 RPC at 51; see too Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 9) [2008] FCA 470 at [88] per Heerey J.
Case: Cadbury Schweppes Pty Limited v Pub Squash Co Pty Limited [1980] 2 NSWLR 851
Outcome: followed
The relevant date for determining whether a plaintiff has established the necessary goodwill or reputation of his product is the date of commencement of the conduct complained of: Cadbury Schweppes Pty Limited v Pub Squash Co Pty Limited [1980] 2 NSWLR 851 at 861 per Lord Scarman. 71 Mere proof of the fact that a person has deliberately copied the name or get-up of a trade rival does not of itself establish a contravention of s 52 or a passing off or goods or services: Apand Pty Ltd v The Kettle Chip Co Ltd (1994) 52 FCR 474 at 496 per Lockhart, Gummow and Lee JJ. In ConAgra 33 FCR at 374, Gummow J said "[d]eliberate copying does not necessarily indicate fraud. A notable example is provided by Cadbury Schweppes [[1980] 2 NSWLR 851]". And, Lockhart J said ( ConAgra 33 FCR at 345: French J at 377 agreed with both Lockhart J and Gummow J): But deliberate copying of the plaintiff's goods does not always evidence an intention to deceive; it may indicate nothing more than realisation that the plaintiff has a useful idea which the defendant can turn to his own advantage, though not intending to pass off his goods as those of the plaintiff.
Case: Collitt v Borsalino Guiseppe e Fratello SA [1913] HCA 34 ; (1913) 16 CLR 344
Outcome: followed
But, what is protected is a proprietary interest of the plaintiff in his goods or get-up; that is, for the purposes of equitable relief, the goodwill which the plaintiff has built up which the defendant's false representation injures. Mere use of the get-up of another in the selling of goods is not enough. The representation which must be conveyed by the use is that the other's goods or goods associated with him are being sold by the defendant: see Collitt v Borsalino Guiseppe e Fratello SA [1913] HCA 34 ; (1913) 16 CLR 344 at 351 per Barton ACJ, Isaacs, Powers and Rich JJ. 59 It is not necessary that the persons purchasing the goods should know of the manufacturer by name, and have in mind when they purchased the goods that they are made by that person (or the person they associate with having produced those goods, whether or not the name is known): Collitt 16 CLR at 351. Where a plaintiff's name or get-up acquires a secondary meaning, the defendant's use of the name or get-up conveys the misrepresentation that the goods are the plaintiff's. It is in this way that the plaintiff's goodwill will be injured: Collitt 16 CLR at 359, 361.
Case: Doctor Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281
Outcome: cited
In Borden [1990] 1 WLR at 514H-515C Lord Jauncey of Tullichettle said that a trader could only claim protection for such capricious additions to a commonly used container as distinguished his use of that container from the use of other traders. Thus, the trader may prevent a rival copying the label on boxes or perhaps the distinctive combination of colours on tins but cannot stop the rival using ordinary boxes or tins simply because they happen to be the same shape and size as his. He said that it was not the shape and size of the container which identified the product of a particular trader to the public, but the capricious additions to it by way of distinctive labelling or a combination of colour or graphic design. He referred to JB Williams Company v H Bronnley &amp; Co Limited (1909) 26 RPC 765 at 771 per Cozens-Hardy MR and at 774 per Farwell LJ. In that case, at 773, Fletcher Moulton LJ had said there that the get-up of an article meant a capricious addition to the article itself, such as the colour or shape or wrapper or anything of that kind: see too Doctor Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281 at 369 [339] per Goldberg J; and Borden [1990] 1 WLR at 515C-D per Lord Jauncey.
Case: JB Williams Company v H Bronnley &amp; Co Limited (1909) 26 RPC 765
Outcome: referred to
In Borden [1990] 1 WLR at 514H-515C Lord Jauncey of Tullichettle said that a trader could only claim protection for such capricious additions to a commonly used container as distinguished his use of that container from the use of other traders. Thus, the trader may prevent a rival copying the label on boxes or perhaps the distinctive combination of colours on tins but cannot stop the rival using ordinary boxes or tins simply because they happen to be the same shape and size as his. He said that it was not the shape and size of the container which identified the product of a particular trader to the public, but the capricious additions to it by way of distinctive labelling or a combination of colour or graphic design. He referred to JB Williams Company v H Bronnley &amp; Co Limited (1909) 26 RPC 765 at 771 per Cozens-Hardy MR and at 774 per Farwell LJ. In that case, at 773, Fletcher Moulton LJ had said there that the get-up of an article meant a capricious addition to the article itself, such as the colour or shape or wrapper or anything of that kind: see too Doctor Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281 at 369 [339] per Goldberg J; and Borden [1990] 1 WLR at 515C-D per Lord Jauncey.