mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sharman Networks Limited and Others v Universal Music Australia Pty Limited and Others [2006] FCAFC 178 ; (2006) 155 FCR 291
Outcome: referred to
IIA has also submitted that it was acknowledged in the Revised Explanatory Memorandum to the Copyright Amendment (Digital Agenda) Bill 1999 (Cth) as being an important contributor to the formulation of that Bill which became the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Such Act inserted into the Copyright Act , among other things, s 112E which is an important provision under consideration in these proceedings. In short, the IIA submits that it is ' in a position to advance useful submissions in the public interest on the proper construction of certain provisions of the Copyright Act ' (see Sharman Networks Ltd and Others v Universal Music Australia Pty Limited and Others [2006] FCAFC 178 ; (2006) 155 FCR 291 at [14] .) It appears from the submissions dated 11 November 2009 that the IIA's final submissions are primarily directed towards four aspects of the proceedings before the Court: the interpretation of s 112E of the Copyright Act ; what effect (if any) the AFACT notices should have on an internet service provider's ('ISP') liability for copyright infringement; whether such notices should lead to the termination and/or suspension of customer accounts; and the correct interpretation of the safe harbour provisions. The IIA emphasises that it does not seek to interfere in the conduct of the proceedings and that because of the limited intervention it seeks it would not disrupt the conduct of the proceedings. It states that should the leave to intervene be granted, it would not seek to make any further oral and written submissions than those already before the Court.
Case: Bathox Australia Pty Ltd v PJ SAS Trading Pty Ltd [2004] FCA 1082
Outcome: applied
The starting point is that, in the ordinary course, all issues of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Bathox Australia Pty Ltd v PJ SAS Trading Pty Ltd [2004] FCA 1082 ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495.
Case: Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328
Outcome: applied
The Court's discretion under O 29 r 2 should be exercised with caution: Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328. For the Court to depart from the ordinary course, the party seeking the separate determination of the issues must satisfy the Court that it would be 'just and convenient' for the order to be made: Reading Australia , supra. The test is 'the practical one of utility, efficiency and convenience in the administration of justice' : Chippendale Printing , supra.
Case: Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254
Outcome: referred to
The Court has found that it may be appropriate to hear a preliminary issue where there is a 'crisp and clear demurrer point': Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254. Alternatively, the Court may decide to hear a question separately if there is a narrow point raised on the preliminary issue, and it has the potential to dispose of a significant part of the litigation if decided in one way: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported ) ; see also Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 . In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, Kirby P expressed the view: 'A matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.'
Case: Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141
Outcome: cited
The Court has found that it may be appropriate to hear a preliminary issue where there is a 'crisp and clear demurrer point': Novartis AG v FH Faulding and Co Ltd [2004] FCAFC 254. Alternatively, the Court may decide to hear a question separately if there is a narrow point raised on the preliminary issue, and it has the potential to dispose of a significant part of the litigation if decided in one way: TVW Enterprises Ltd v Duffy ( Toohey J, 28 March 1985, unreported ) ; see also Orison Pty Ltd v Strategic Minerals Corporation NL (1987) 77 ALR 141 . In CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606, Kirby P expressed the view: 'A matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.'
Case: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Outcome: applied
The starting point is that, in the ordinary course, all issues of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Bathox Australia Pty Ltd v PJ SAS Trading Pty Ltd [2004] FCA 1082 ; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495.
Case: SJSB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 225
Outcome: cited
The Tribunal simply did not reach a positive state of satisfaction as to whether protection obligations existed. As Scarlett FM concluded, this mandated a refusal (at [25] citing SJSB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 225). His Honour observed (at [31]) that there is an obligation on the Tribunal to be satisfied affirmatively. Where an applicant does not attend before the Tribunal to provide further information when the Tribunal has expressed itself not so satisfied, it generally follows, unsurprisingly, that the application is not successful. 9 The appellant has not established any of the grounds of his notice of appeal. He has not established that the Tribunal decision was infected by jurisdictional error. He has not established any error on the part of the Federal Magistrate. There is no suggestion that the Tribunal failed to follow the appropriate procedures in notifying the appellant of the hearing or that the Tribunal was otherwise not entitled to proceed to a decision in the appellant's absence. 10 It follows that the appeal should be dismissed. The appellant is to pay the first respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2008 The appellant was self represented. Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 26 August 2008 Date of Judgment: 26 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1385.html
Case: SZMCW v Minister for Immigration [2008] FMCA 896
Outcome: considered
The appellant applied for a protection visa on 3 August 2007. The application was refused by a delegate of the Minister for Immigration and Citizenship. The delegate's decision was affirmed by the Refugee Review Tribunal. An application for judicial review of the Tribunal's decision was dismissed by Scarlett FM ( SZMCW v Minister for Immigration [2008] FMCA 896). 3 The appellant was invited to attend a hearing before the Tribunal following notice to him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The appellant did not attend the hearing. He informed Scarlett FM that the reason was that he was sick and had been sick for four days. He confirmed to his Honour that he did not contact the Tribunal at the time of the hearing to advise that he was ill, nor did he contact the Tribunal after the hearing to seek another chance at a further hearing. 4 In its reasons, the Tribunal noted that the appellant did not attend the hearing and that he had not provided further material or information to the Tribunal with his application for review of the decision of the delegate. The Tribunal concluded that, '[ g ] iven the scant details provided by the applicant regarding his claims ', it was not satisfied on the evidence before it that there was a real chance that the appellant would be persecuted for a Convention reason if he were to return to Malaysia. 5 The Tribunal noted that it was unable to explore further, or test, the veracity of the appellant's claims as he had not attended the hearing. From the Tribunal's decision, it is apparent that it was not satisfied of the veracity of those claims or that they properly established, to the satisfaction of the Tribunal, the matters referred to by the appellant in his written material. That is, the Tribunal was not satisfied as to the events described by the appellant. It followed that the Tribunal was not satisfied that the appellant would suffer persecution were he to return to Malaysia. 6 In his notice of appeal, the appellant raises the following grounds of appeal: 1. The Refugee Review Tribunal did not fully consider the current situation in Malaysia. 2. I face a risk of being put into jail [sic] if I go back to Malaysia. 3. The Tribunal failed to assess the possibility of the risk of being prosecuted for the applicant if the applicant returns to Malaysia.
Case: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: followed
The High Court in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd &amp; Ors [2003] HCA 18 ; (2003) 214 CLR 51 discussed the concept of unconscionable conduct as used in s 51AA of the Act. Gleeson CJ at 62 accepted that 'special disadvantage' meant a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in that party's own best interests. Gleeson CJ (referring to the decision of the Full Court of this Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others [2002] FCAFC 4 ; (2002) 117 FCR 301) said in Berbatis [2003] HCA 18 ; 214 CLR 51 at 64: A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even 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.
Case: Australian Competition and Consumer Commission v Leelee Pty Ltd and Anor (2000) ATPR 41-742
Outcome: referred to
Section 51AC commenced operation on 1 July 1998 and as such the applicants can only rely on their claim under this section in relation to the events alleged to have taken place after this time. Pursuant to s 51AC(6)(b) of the Act the Court is entitled to take into account circumstances existing prior to the commencement of the section but is not entitled to take into account alleged conduct prior to the commencement of the section in determining post commencement breaches: see Australian Competition and Consumer Commission v Leelee Pty Ltd and Anor (2000) ATPR 41-742 at [72]-[92]. 75 Section 51AC(3) of the Act sets out a non-exhaustive list of factors to which a court may have regard in determining whether a corporation has contravened s 51AC(1). They include the relative strengths of the bargaining positions of the supplier and the business consumer as defined and whether, as a result of the supplier's conduct, the business consumer was required to comply with conditions not reasonably necessary for the protection of the legitimate interests of the supplier. Other factors include the capacity of the business consumer to understand documents relating to the supply or possible supply of goods or services and whether any undue influence or pressure was exerted on, or unfair tactics used against, the business consumer. Also relevant is the extent to which the supplier unreasonably failed to disclose to the business consumer any intended conduct that might affect the interests of the business consumer and the risk involved. The extent to which the supplier was willing to negotiate the terms and conditions of any contract for the supply of goods or services with the business consumer and the extent to which the supplier and the business consumer acted in good faith are also relevant factors. 76 The relevant conduct for the purposes of s 51AC(1)(a) relied upon by the applicants must be in connection with the supply or possible supply of services to a person. For the applicants to succeed in a claim within this section the services provided by AIA to the applicants must be identified.
Case: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others [2002] FCAFC 4 ; (2002) 117 FCR 301
Outcome: followed
The High Court in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd &amp; Ors [2003] HCA 18 ; (2003) 214 CLR 51 discussed the concept of unconscionable conduct as used in s 51AA of the Act. Gleeson CJ at 62 accepted that 'special disadvantage' meant a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in that party's own best interests. Gleeson CJ (referring to the decision of the Full Court of this Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others [2002] FCAFC 4 ; (2002) 117 FCR 301) said in Berbatis [2003] HCA 18 ; 214 CLR 51 at 64: A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even 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.
Case: The Commercial Bank of Australia Limited v Amadio and Another [1983] HCA 14 ; (1983) 151 CLR 447
Outcome: referred to
In The Commercial Bank of Australia Limited v Amadio and Another [1983] HCA 14 ; (1983) 151 CLR 447 Mason J referred to the underlying general principle applicable where one party takes unfair or unconscientious advantage of an opportunity created by the special disadvantage of another. Mason J said at 462: I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. 73 Section 51AC of the Act proscribes unconscionable conduct in business transactions. The relevant prohibition is found in s 51AC(1)(a): A corporation must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person (other than a listed public company); ... engage in conduct that is, in all the circumstances, unconscionable.
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: considered
The Court is also guided by the observations of the High Court of Australia in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] where the High Court referred to the preference for courts to make findings on the basis of contemporary materials, objectively established facts and the apparent logic of events rather than on the appearances of witnesses at the hearing. 92 The detail contained in the affidavits provided by Mr Yang is carefully constructed and suggests recent invention in English. The same observation can be made of the other witnesses for the applicants. In this case the translation from Mandarin to English and the grammatical and semantic nuances lost in that process engender too much scope for uncertainty and do not establish the precision necessary for a finding of misrepresentation. The claimed representations by Ms Chen and Ms Lin were allegedly made to Mr Yang in Mandarin. The Court is not satisfied that any representations were made by them as alleged.
Case: Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1
Outcome: referred to
The Court is required to distil from the facts a version of the events which it considers is established by the evidence. In doing so the Court refers to the observations of McLelland CJ in Watson v Foxman and Others (1995) 49 NSWLR 315 at 318-9, cited with approval in Lahoud &amp; Ors. v Lahoud &amp; Anor. [2006] NSWCA 169 at [91] . With regards to allegations of misleading and deceptive conduct claimed to be within s 52 of the Act, his Honour said at 318: ... it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. See also Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1 at 107.
Case: Lahoud &amp; Ors. v Lahoud &amp; Anor. [2006] NSWCA 169
Outcome: referred to
The Court is required to distil from the facts a version of the events which it considers is established by the evidence. In doing so the Court refers to the observations of McLelland CJ in Watson v Foxman and Others (1995) 49 NSWLR 315 at 318-9, cited with approval in Lahoud &amp; Ors. v Lahoud &amp; Anor. [2006] NSWCA 169 at [91] . With regards to allegations of misleading and deceptive conduct claimed to be within s 52 of the Act, his Honour said at 318: ... it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. See also Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1 at 107.
Case: Legione and Another v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 at 444
Outcome: referred to
The second basis upon which the applicants claim unconscionable conduct on the part of AIA is in relation to the events leading up to the resignation of Mr Yang on 30 January 2002. AIA accepts that a strict application of legal rights may be unconscionable if exercised harshly, oppressively or capriciously: see Legione and Another v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 at 444. However there is nothing to suggest that the effective termination (by resignation) of Mr Yang was exercised by AIA harshly, oppressively or capriciously. The dishonesty of Mr Yang in relation to the issue of the receipts in respect of Mr Xu's policies, the false completion of the application forms for Mr Xu, the false representations to the AIA clerk on 5 December 2001, the false alteration of the receipt presented to AIA and the false versions of events given to Mr Chinnery in January 2002 together with the choice of resignation offered to Mr Yang, support a conclusion that the cessation of Mr Yang's agency was not in any way brought about by the unconscionable conduct of AIA but rather by the conduct of Mr Yang himself.
Case: Moukhayber v Camden Timber and Hardware Co Pty Ltd [2002] NSWCA 58
Outcome: considered
The only alleged oral representations made in English were made by Mr Juneau to Mr Yang. The Court is guided by the judgment of Heydon JA in Moukhayber v Camden Timber and Hardware Co Pty Ltd [2002] NSWCA 58 where his Honour said (at [29]) 'the risks of misunderstanding...were doubtless increased by the plaintiff's lack of skill in speaking English' . Given Mr Yang's very limited grasp of the English language, the Court is not satisfied that the alleged representations of Mr Juneau were in fact made. 94 The representation alleging indemnity by AIA to Mr Yang and the evidence in support of such alleged representation lacks the required precision to constitute a representation. In summary the Court is not satisfied on the balance of probabilities that any representations were made to Mr Yang by Ms Lin, Ms Chen or by Mr Juneau as alleged. 95 The terms relied upon by Mr Yang as constituting part of the representations, namely ' security for life' and ' guaranteed for life' , exemplify the language difficulties and imprecision associated with the representations alleged in these proceedings. Identical words are contained in AIA's brochures but in an entirely different context to that claimed by Mr Yang. Such phrases are published by AIA in brochures for the benefit of clients, not for its agents. The brochure entitled 'Security for Life' states, inter alia, 'AIA has the strength and international resources to provide "Security for Life" to its much valued customers' . The brochure published solely for use by agents entitled 'A Career for Life' states, inter alia, 'In Australia, we give our clients 'Security for Life' we will always be there to help them when they need us no matter where they might be' . The brochure does not suggest that the term 'security for life' was to be interpreted as applying to agents. Rather it clearly applies to 'clients' .
Case: Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621
Outcome: followed
For conduct to be actionable as unconscionable under s 51AA it must be unconscionable under the unwritten law. The requirements of a finding of unconscionability in equity were described by the High Court in Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621. At 637 Deane J said: It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or "unconscionable" that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable.