mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218
Outcome: applied
Federal Court is empowered to make interlocutory orders by s 23 Federal Court of Australia Act 1976 (Cth). The principles which govern the exercise of that power were set out recently by Stone J in Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218 at [17] , namely: 1. That there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. That it will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. That the balance of convenience favours the granting of an injunction. (See also Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675 per Sundberg J at [9]; Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at [153]; and American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396 per Lord Diplock at [406]-[407].) 1. Serious Question to be Tried
Case: Outdoor Power Products Pty Ltd v Silvan Australia Pty Ltd [2005] FCA 1696
Outcome: cited
similar case concerning backpack style containers used for spot-spraying pests and weeds was heard before Finkelstein J in Outdoor Power Products Pty Ltd v Silvan Australia Pty Ltd [2005] FCA 1696. In that case, Finkelstein J considered an application for an interlocutory injunction to restrain an infringement of a trade mark over the 'Solo Sprayer'. His injunction considered the elements of the claimed passing off action and found it to be made out sufficiently for the purposes of an interlocutory application. His Honour held that in a case where it was clear that the offending product was interfering with the applicant's goodwill, damages would not be an adequate remedy. As I indicated earlier, I have been provided in Court this morning with the football kicking tee as sold by the first respondent which I have referred to as the infringing kicking tee, and a 'Sharp Shooter' football kicking tee. I am in no doubt that the general appearance of each is extremely similar. I agree with Finkelstein J that in circumstances where it is clear that an infringement of the Registered Design by the respondents is being used to interfere with the goodwill of the applicants and being used to erode the applicants' market share in breach of the applicants' monopoly rights pursuant to the Registered Design, damages would not be an adequate remedy. 3. Balance of convenience As I have already indicated, there is evidence that: o the respondents are selling infringing kicking tees which may infringe the applicants' registered design o there is a history of communication between these parties, including it appears undertakings by the respondents not to continue to sell kicking tees which infringe the applicants' Registered Design o the infringing kicking tees which the respondents are selling bear a very strong similarity to the applicants' kicking tees. Again, it is unfortunate that the respondents did not appear today. However, the factors I have listed above, in particular the history of this matter as presented to me by the applicants, persuade me that it would be appropriate to grant the applicants interlocutory relief as they seek. Further, as evidenced by the email and letter exhibited to the affidavit of Mr Philp, the respondents had already indicated that they would not be selling kicking tees which infringe the applicants' Registered Design. An order restraining them from selling the infringing kicking tees appears to be compatible with undertakings it seems they made in 2005.
Case: Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675
Outcome: applied
Federal Court is empowered to make interlocutory orders by s 23 Federal Court of Australia Act 1976 (Cth). The principles which govern the exercise of that power were set out recently by Stone J in Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218 at [17] , namely: 1. That there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. That it will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. That the balance of convenience favours the granting of an injunction. (See also Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675 per Sundberg J at [9]; Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at [153]; and American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396 per Lord Diplock at [406]-[407].) 1. Serious Question to be Tried
Case: Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435
Outcome: cited
the Court has not had the benefit of submissions from the respondents on these points. However, the visual similarity in the tees is clear. Gummow J in Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435 at 15 said 'the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind'. Prima facie , there is a case that the tees sold by the first respondent infringe the Registered Design of the applicants under the Designs Act 1906 (Cth). Further, there is affidavit evidence from the applicants that at least some infringing kicking tees are being sold in stores operated by the first respondents. Finally, there is evidence before the Court, including correspondence from the respondents, which supports the third contention of the applicants in relation to the conduct of the respondents. In my view, these issues indicate that there is a serious question to be tried. 2. Damages insufficient In their written submissions and in oral submissions this morning the applicants submitted that whilst an account of profits or damages in respect of the infringements to date are sought in the eventual trial, long term damage to the market for kicking tees to which their Registered Design has been legitimately applied is of most concern.
Case: Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 
Outcome: referred to
I have also had regard to what was said in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002. 6 It is necessary to outline the issues in the case and how the case has been conducted to date. 7 The application was supported by a 14 page statement of claim together with a 5 page schedule. In a summary prepared by counsel then appearing on behalf of the applicant in November 2005, the dispute was described as follows: The following summary is not intended to traverse, alter or amend the statement of claim. Nature of the dispute 1. The dispute concerns SilkEarl's claim that Ainsworth has failed to pay all royalties payable to it under the Royalty Agreement they made on 27 July 1999 (which was amended on 18 October 2001) and the determination of this question will require the Court to construe that Agreement and in particular the critical clauses 3, 4(a)(i) to (iii), 4(c), (d), (e)(i) to (iii), (h), 5 and 6(b), and from the evidence to consider which, if any of the terms of the Royalty Agreement was breached and then to determine what damages ought to be awarded to SilkEarl. 2. Although Ainsworth paid to SilkEarl some monthly payments, SilkEarl shall contend that the payments it received do not accurately represent the amount of royalties which it ought to have been paid and which Ainsworth was and is liable to pay under the terms of the Royalty Agreement.
Case: Ex parte Bellanto; Re Prior [1963] SR (NSW) 190
Outcome: referred to
Another important feature of the correspondence and the conduct of the case to date is a degree of emotive language used by Mr Maiocchi, at times involving sweeping allegations of impropriety by the respondent and its solicitors. Not all litigation can be conducted in peaceful harmony, but one of the fundamental obligations of any practitioner in the discharge of his or her obligations to the client and to the court is the civil and dispassionate communication with other parties to that litigation: see generally Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 and Garrard v Email Furniture (1993) 32 NSWLR 662 at 667.
Case: Garrard v Email Furniture (1993) 32 NSWLR 662 
Outcome: referred to
Another important feature of the correspondence and the conduct of the case to date is a degree of emotive language used by Mr Maiocchi, at times involving sweeping allegations of impropriety by the respondent and its solicitors. Not all litigation can be conducted in peaceful harmony, but one of the fundamental obligations of any practitioner in the discharge of his or her obligations to the client and to the court is the civil and dispassionate communication with other parties to that litigation: see generally Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 and Garrard v Email Furniture (1993) 32 NSWLR 662 at 667.
Case: ACCC v C.G. Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Outcome: applied
Rose and Riva must establish that they suffered a special disability or were placed in some special situation of disadvantage, which rendered them unable to make a worthwhile judgment as to what was in their own best interests and that the Lenders knowingly took advantage of that disability or disadvantage. No special disability or special disadvantage has been established in the present instance. A person will not be in a position of special disadvantage or disability as a result of inequality of bargaining power. Many, if not most, contracts are made between parties of unequal bargaining power and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests ( ACCC v C.G. Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [11]). Unconscientious exploitation of another's inability or diminished ability to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position ( ACCC v C.G. Berbatis Holdings Pty Ltd at [14]). Notwithstanding that Riva, Moruben and Quadwest were all in default, that Moruben had no contractual entitlement to the discharge of the mortgages over the Moruben Road property in the absence of tender of all monies owing under the Moruben Mezzanine Agreement and had no contractual entitlement to redemption of the Moruben Equity Mortgage because the amount of the Net Project Profit could not be calculated, Mr Rose was seeking indulgences from the Lenders that would permit him to obtain an extension of the facilities granted to Riva. He had no contractual entitlement to such an extension and therefore had to make concessions to the Lenders to obtain such a concession. One of the terms that the Lenders dictated was the provision of personal guarantees by him. While the situation may have been difficult for Mr Rose, and the Quadrant Group generally, it is not a situation that justifies a conclusion that the Lenders brought undue pressure or duress to bear on Mr Rose or Riva or that their conduct was in any way unconscionable. As I have said, the Lenders contend that relief under the Contracts Review Act is precluded by the operation of s 6(2). Clearly enough, the Loan Agreement Variation Deeds entered into by Riva were entered into in the course of the business carried on by Riva, namely, the development of the Chevron Island Property. However, Mr Rose was not personally engaged in the development of the Moruben Road Property, the Chevron Island Property or the Adelaide Terrace Property. To the extent that those developments involved carrying on businesses, those businesses were carried on by Moruben, Riva and Quadwest respectively.
Case: Watson v Foxman (1995) 49 NSWLR 315
Outcome: applied
one party alleges that the conduct of another was misleading or deceptive, it is incumbent upon the first party to establish, on the balance of probabilities, precisely what the conduct was that is alleged to be misleading. In addition, the precise circumstances that rendered the conduct misleading must be established. Where the conduct is the making of oral representations, the words spoken must be proved with a degree of precision that enables the Court to be satisfied, on the balance of probabilities, that the words spoken were misleading in the circumstances established. The question of whether spoken words were misleading may, although not necessarily, depend upon what may have been relatively subtle nuances flowing from the use of a particular word, phrase or grammatical construction or the presence or absence of some qualifying word or phrase or condition (see, for example, Watson v Foxman (1995) 49 NSWLR 315 at 318-319). There is no contemporaneous documentary evidence of the representations alleged by Mr Rose to have been made by Mr Wilson. The sole evidence of the alleged representations is oral evidence given by Mr Rose. To the extent that that evidence is inconsistent with Mr Bevan's evidence, I reject it. I consider that the evidence of the conversation given by Mr Wilson indicates what happened. Accordingly, I shall recount only that version. Mr Wilson accepted that he had a conversation with Mr Rose in March 2006 concerning the sale of the unsold units in the Chevron Island Property. Mr Rose broached the subject by saying that, in his opinion, the Gold Coast market was deteriorating and that he felt an inline sale would be beneficial to the Chevron Island Project. He said that he had a potential inline buyer that would see the " mezzanine deck " portion of the project receive a full return of principal and interest; however, the equity portion of the loan would only receive the principal plus an 8% return, which would leave a 2% shortfall, and there would be no profit share.
Case: Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450
Outcome: cited
I accept the submission made by counsel for the applicants that the deed poll did not provide for insurance but was in the nature of a guarantee. Counsel referred to the distinction between contracts of insurance and other classes of contract including contracts of guarantee recognised in such cases as Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 at 662-664 per Channell J; Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450; Seaton v Heath [1899] 1 QB 782 at 789, 792; Re Australian &amp; Overseas Insurance Co Ltd [1966] 1 NSWR 558 per McLelland CJ in Eq.
Case: Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658
Outcome: cited
I accept the submission made by counsel for the applicants that the deed poll did not provide for insurance but was in the nature of a guarantee. Counsel referred to the distinction between contracts of insurance and other classes of contract including contracts of guarantee recognised in such cases as Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 at 662-664 per Channell J; Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450; Seaton v Heath [1899] 1 QB 782 at 789, 792; Re Australian &amp; Overseas Insurance Co Ltd [1966] 1 NSWR 558 per McLelland CJ in Eq.
Case: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160
Outcome: cited
In Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160, Emmett J had held that a provision in the Life Insurance Act 1995 (Cth) analogous to s 17C(2) of the Act did not lay down a condition precedent to the existence of jurisdiction in the Federal Court to confirm a scheme. In Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37, Katz J adopted the same approach because his Honour did not think that Emmett J had been plainly wrong. In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450, although with some doubt, I adopted the same approach, namely, of following Emmett J because I did not think his Honour was plainly wrong (at [63]). A similar approach was subsequently taken by Bennett J in Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367 at [11] . Perhaps predictably, I took the same approach in the present case in relation to the question of jurisdiction.
Case: Re Australian &amp; Overseas Insurance Co Ltd [1966] 1 NSWR 558
Outcome: cited
I accept the submission made by counsel for the applicants that the deed poll did not provide for insurance but was in the nature of a guarantee. Counsel referred to the distinction between contracts of insurance and other classes of contract including contracts of guarantee recognised in such cases as Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 at 662-664 per Channell J; Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450; Seaton v Heath [1899] 1 QB 782 at 789, 792; Re Australian &amp; Overseas Insurance Co Ltd [1966] 1 NSWR 558 per McLelland CJ in Eq.
Case: Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450
Outcome: cited
In Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160, Emmett J had held that a provision in the Life Insurance Act 1995 (Cth) analogous to s 17C(2) of the Act did not lay down a condition precedent to the existence of jurisdiction in the Federal Court to confirm a scheme. In Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37, Katz J adopted the same approach because his Honour did not think that Emmett J had been plainly wrong. In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450, although with some doubt, I adopted the same approach, namely, of following Emmett J because I did not think his Honour was plainly wrong (at [63]). A similar approach was subsequently taken by Bennett J in Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367 at [11] . Perhaps predictably, I took the same approach in the present case in relation to the question of jurisdiction.
Case: Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367
Outcome: cited
In Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160, Emmett J had held that a provision in the Life Insurance Act 1995 (Cth) analogous to s 17C(2) of the Act did not lay down a condition precedent to the existence of jurisdiction in the Federal Court to confirm a scheme. In Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37, Katz J adopted the same approach because his Honour did not think that Emmett J had been plainly wrong. In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450, although with some doubt, I adopted the same approach, namely, of following Emmett J because I did not think his Honour was plainly wrong (at [63]). A similar approach was subsequently taken by Bennett J in Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367 at [11] . Perhaps predictably, I took the same approach in the present case in relation to the question of jurisdiction.
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37
Outcome: cited
In Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160, Emmett J had held that a provision in the Life Insurance Act 1995 (Cth) analogous to s 17C(2) of the Act did not lay down a condition precedent to the existence of jurisdiction in the Federal Court to confirm a scheme. In Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37, Katz J adopted the same approach because his Honour did not think that Emmett J had been plainly wrong. In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450, although with some doubt, I adopted the same approach, namely, of following Emmett J because I did not think his Honour was plainly wrong (at [63]). A similar approach was subsequently taken by Bennett J in Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367 at [11] . Perhaps predictably, I took the same approach in the present case in relation to the question of jurisdiction.
Case: Seaton v Heath [1899] 1 QB 782
Outcome: cited
I accept the submission made by counsel for the applicants that the deed poll did not provide for insurance but was in the nature of a guarantee. Counsel referred to the distinction between contracts of insurance and other classes of contract including contracts of guarantee recognised in such cases as Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 at 662-664 per Channell J; Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450; Seaton v Heath [1899] 1 QB 782 at 789, 792; Re Australian &amp; Overseas Insurance Co Ltd [1966] 1 NSWR 558 per McLelland CJ in Eq.
Case: Quinlan v Safe International Forsakrings AB [2006] FCA 1718
Outcome: cited
It is commonly understood that applications for summary judgment should be brought promptly so as to avoid the incurrence of costs in preparing for trial. See Quinlan v Safe International Forsakrings AB [2006] FCA 1718 at [47] . This decision reflects a long line of cases in various jurisdictions. However it is not necessary to consider that proposition for present purposes. The plaintiffs assert that they are entitled to summary judgment or judgment upon the basis of admissions made by Giant Marine and upon the proper construction of the United Kingdom Standard Conditions for Towage and Other Services (Revised 1974) (the "Standard Conditions") which were incorporated into the contract between Giant Marine and Adsteam. 12 Counsel for the plaintiffs submit that notwithstanding payment in each action, I should simply "enter judgment" for each plaintiff. It is said that not infrequently, courts pronounce orders in that form. In my own experience, when a claim has failed completely, it is not uncommon for a court to order that there be judgment for the defendant. In those circumstances there is no need to say more, save as to costs. However, where judgment is entered for a plaintiff, it is almost axiomatic that some relief must be identified. It may be declaratory relief. It may be an award of damages. It may be the making of an injunction or an order for specific performance. To give judgment for a plaintiff without identifying the appropriate relief could be nothing more than a shorthand way of indicating that the plaintiff had been successful and that appropriate orders would be made accordingly. Where there are to be no such orders, such a "judgment" is pointless. Counsel sought to justify the proposed orders upon the basis that they would avoid further disputes between the parties, or between parties and third parties, as to liability for the collision and/or for the relevant damage. In some circumstances, fear of such a future dispute might justify declaratory relief. However, for present purposes, there is no evidence to suggest any reasonable basis for such a fear.