mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
By enacting s 31A , Parliament intended "to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130": see White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511 at [54] per Lindgren J. Judges have differed, however, about the extent to which the provision achieves this end, but these differences probably do not much matter. The key is to address the statutory question. That is, under s 31A , in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospect of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.
Case: White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511
Outcome: cited
By enacting s 31A , Parliament intended "to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130": see White Industries Aust Pty Ltd v Commissioner of Taxation [2007] FCA 511 at [54] per Lindgren J. Judges have differed, however, about the extent to which the provision achieves this end, but these differences probably do not much matter. The key is to address the statutory question. That is, under s 31A , in order to grant summary judgment, I must be satisfied that the respondents have no reasonable prospect of success in defending the infringement claim. As s 31A(3) makes clear, this does not mean that I must be satisfied that their defence is hopeless or bound to fail.
Case: Hicks v Ruddock [2007] FCA 299
Outcome: cited
At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J.
Case: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489
Outcome: cited
At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J.
Case: Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352
Outcome: cited
At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J.
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: cited
At the same time, the occasion for summary judgment must be clear before it will be granted: see Hicks v Ruddock [2007] FCA 299 at [13] per Tamberlin J. Summary judgment is inappropriate where there is a real dispute about the relevant facts and evidence: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] per Besanko J and Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] to [48] per Rares J; Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] per Tracey J; and Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] per French J.
Case: Begg v Cooper (1878) 40 LT 29
Outcome: cited
I accept that there is power to grant leave to the applicants to rely on supplementary affidavits in support of their summary judgment motion: compare Begg v Cooper (1878) 40 LT 29 and Carlton and United Breweries Ltd v Long [1958] VR 539 at 540-542 per Smith J. Subject to one matter, I consider this power should be exercised in the applicant's favour. The affidavits do not alter the essential case the respondents were to meet on this summary judgment application. On one view, the respondents were entitled to summary judgment without them. The effect of the affidavits is simply to overcome two potential minor deficiencies in the applicants' supporting material. These deficiencies were clearly capable of being met by the applicants. Had they sought leave at the hearing on 29 October 2007 to file this further material, I would have granted it. I can see no good reason to deny them leave now.
Case: Carlton and United Breweries Ltd v Long [1958] VR 539
Outcome: cited
I accept that there is power to grant leave to the applicants to rely on supplementary affidavits in support of their summary judgment motion: compare Begg v Cooper (1878) 40 LT 29 and Carlton and United Breweries Ltd v Long [1958] VR 539 at 540-542 per Smith J. Subject to one matter, I consider this power should be exercised in the applicant's favour. The affidavits do not alter the essential case the respondents were to meet on this summary judgment application. On one view, the respondents were entitled to summary judgment without them. The effect of the affidavits is simply to overcome two potential minor deficiencies in the applicants' supporting material. These deficiencies were clearly capable of being met by the applicants. Had they sought leave at the hearing on 29 October 2007 to file this further material, I would have granted it. I can see no good reason to deny them leave now.
Case: Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490
Outcome: applied
Finally, as noted above, the respondents have not pleaded reliance on s 123 of the 1995 Act in their Amended Defence. That is, they have not sought positively to assert that the counterfeit goods were not counterfeit because the marks in question were applied with the consent of the registered owner. Had they done so, then it would have been incumbent on them to make out their case: see Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490 at [72] per Tamberlin J. As things stand, even if they had relied on s 123 , in the absence of evidence tending to support this assertion, there would be no reason to believe that they had any reasonable prospect of succeeding on a s 123 defence. 39 In these circumstances, there is nothing to be gained from adjourning this motion to permit the respondents to have a subpoena issued to Mr Duong. The respondents have not presented any evidence that would indicate that he could give relevant evidence concerning the issue of authorisation. They have not proposed in argument how he could give any such evidence. On the face of it, it seems most unlikely that he could assist the respondents at all on this question, especially when the evidence of Mr Shepherd is borne in mind.
Case: Nokia Corporation v Truong [2005] FCA 1141
Outcome: applied
In written submissions filed with leave after the hearing, counsel for the respondents submitted that s 123 was not 'a defence' in the strict sense. Instead, s 123 reduced the ambit of s 120. It was unnecessary, so counsel said, for the respondents to plead s 123 expressly as a defence. Even if this were so, it would not affect the outcome of the applicants' summary judgment motion. Let it be assumed that the Amended Defence positively asserted that the marks on the goods in question were applied with the registered owner's consent and the goods were not counterfeit. The respondents placed no evidence before the Court that tended to support this assertion: see Nokia Corporation v Truong [2005] FCA 1141 at [36] per Crennan J. Nor did they place any evidence before the Court that they had any such evidence available to them. 41 The pleadings and the evidence lead me to conclude that the first respondent has no reasonable prospects of defending the applicants' trade mark infringement claim. 42 Accordingly, providing the applicants file and serve the duly affirmed affidavits of Mr Shepherd and Ms Limpipat today, I would order summary judgment be entered on the trade mark infringement claim against the first respondent, Rosa Dora. I propose to adjourn the matter to enable the parties to prepare draft minutes of order to give effect to these reasons.
Case: SZIMD v Minister for Immigration [2007] FMCA 445
Outcome: affirmed
This is an appeal from a decision of a Federal Magistrate which dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa. Details of the application, the Tribunal's decision and the decision of the Federal Magistrate are set out in the judgment of the latter, SZIMD v Minister for Immigration [2007] FMCA 445 , which is available on the internet. 2 The appellant is a citizen of the People's Republic of China. He claimed to have well-founded fear of persecution based on his membership of Falun Gong. He claimed to have practised Falun Gong since 1998 in order to assist his health. He also claimed that after the ban on Falun Gong in 1999 his health deteriorated. He claimed to have been detained on five occasions and been tortured. 3 Before the Tribunal the appellant claimed that he practised Falun Gong exercises in Australia with friends. He also claimed that he had a visa to visit Singapore, but had not in fact travelled there because on the way to the airport to go to Singapore he had been stopped and beaten. The Tribunal did not accept that the appellant was a Falun Gong practitioner and was subject to arrest and torture in China. He provided no written evidence and his application contained minimal details. He was not a credible witness in respect of key aspects. His evidence was unconvincing, generalised and lacking specificity, especially in relation to the claims of arrest. He was unable to elaborate in any details on the belief system of Falun Gong. He had not had contact with the Falun Association in Australia. The Tribunal found that the paucity of the appellant's evidence led it to find that he was not genuinely in fear of persecution.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: referred to
As subcl (a) and (b) of s 999(1) of the Act prescribe eligibility for a double orphan pension by reference to a person having the responsibilities of a lawful custodian of a child, it is to be expected that s 999(1)(c) would impose some different and additional eligibility criterion. Nominally it does so. But, if the Secretary's contention is correct, it seems to me that it does so only by a circuitous route which imposes by s 999(1)(c) the same criterion for eligibility the existence of legal responsibilities as a custodian of a child as imposed by s 999(1)(a). Of course, it also imposes the criterion that the natural parents of the child be deceased, but the present issue is upon where there are adoptive parents. The criteria for eligibility could readily have excluded a person who is a custodian of a child appointed under s 7 of the Immigration Act and whose natural parents are deceased. It does not expressly do so. The term "parent" is not defined in the Immigration Act, and Mrs Waldron is not an "intending adoptive parent" under that Act for the reasons already given. It would be surprising if Mrs Waldron, who is not yet a parent of Isabelle (recognised under Australian law) but is her intending adoptive parent in the ordinary meaning of that term (but is not her "intending adoptive parent" as defined in the Immigration Act) should be regarded as an adoptive parent under the definition of "parent" in s 5 of the Act and for the purposes of s 999 of the Act. In that context, the additional criterion for eligibility for a double orphan pension in s 999(1)(c) includes, in my view, that the young person not have a parent, either natural or adoptive and recognised under Australian law. Persons with custody of a child but not enjoying the status of a person recognised under Australian law as a parent or an adoptive parent, and being vulnerable to the Minister's (or in this case the SA Manager for Adoption's) powers under s 7(2) of the Immigration Act, are therefore eligible for the double orphan pension. As the Immigration Act and the Act and the Family Assistance Act intersect on their operation, at least in respect of eligibility for the double orphan pension, they should be regarded as operating with consistently expressed meanings except where there is clearly a contrary intendment (e.g. the definition of "intending adoptive parent" in the Immigration Act): see e.g. per Brennan J in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 367-8. That approach maintains that consistency.
Case: SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 ; (2009) 107 ALD 352
Outcome: followed
SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 ; (2009) 107 ALD 352 at [19] , Perram J observed that: The Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 establishes three propositions which are pertinent. First, the invitation contemplated by section 425 must not be a hollow shell or an empty gesture: at [33]. Second, another way of putting the first requirement may be to say that the tribunal must provide a 'real and meaningful' invitation: at [37]. Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37].
Case: Re: Bienstein and Attorney-General (Cth) [2004] AATA 896
Outcome: cited
2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth ("the Attorney-General") and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, "the Minister") for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General's Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General's Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405.
Case: Re: Bienstein and Minister for Justice and Customs [2004] AATA 895
Outcome: cited
2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth ("the Attorney-General") and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, "the Minister") for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General's Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General's Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405.
Case: Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7
Outcome: cited
31 October 2007, the Tribunal gave directions, requiring the Attorney-General and the Minister to file and serve a summary of all the evidence detailing the searches conducted and any other documents on which they intended to rely at the hearing. The Tribunal scheduled a directions hearing for 26 November 2007. By letter dated 12 November 2007, Ms Bienstein submitted that the directions were inconsistent with the law. She submitted that the Tribunal should have directed that "a decision be furnished and a section 37 statement be filed and served in support of that decision." Ms Bienstein sought amendment of the directions accordingly. There was argument about this issue at a telephone directions hearing on 26 November 2007. Following that, on 4 January 2008, the Tribunal published a decision expressed in the following terms: The Tribunal has decided that: (1) it has no power to direct the Attorney-General or the Justice Minister to make a decision; (2) it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein's request for access to documents; (3) the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, the time within which they must do so to is extended until 1 February 2008; and (4) it is under no obligation to order that the directions hearing be recorded. At the same time, the Tribunal gave written reasons for that decision. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7. On 4 February 2008, Ms Bienstein filed in this Court a purported appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") in respect of this decision of the Tribunal. That proceeding became number VID 65 of 2008. Ms Bienstein subsequently discontinued it, probably as a result of becoming aware of authorities such as Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80 , in which it has been held that an interlocutory ruling or decision by the Tribunal is not necessarily a "decision" from which an appeal lies pursuant to s 44 of the AAT Act.
Case: Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 330
Outcome: cited
Tribunal proceeded to deal with the two applications for review. In the course of managing them, the Tribunal made a further interlocutory decision on 23 April 2008, as to the directions to be given, declining to accept submissions of Ms Bienstein, who sought detailed directions to each respondent as to the nature of the searches that each should undertake. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 330. On 5 May and 6 June 2008, the Tribunal conducted a hearing. On 13 June 2008, the Tribunal published its decision, affirming the decisions deemed to have been made by the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. The Tribunal found that each of the Attorney-General and the Minister had taken all reasonable steps to find documents meeting the terms of Ms Bienstein's requests. The Tribunal was satisfied that no documents, other than those that had already been found, existed. On 16 July 2008, Ms Bienstein filed a notice of appeal in this Court in respect of that decision. That appeal became proceeding number VID 563 of 2008. On 2 January 2009, Ms Bienstein filed an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), which became proceeding number VID 1 of 2009. Originally, Ms Bienstein named as respondents to that proceeding Malcolm Bennett, the FOI Director of the Attorney-General's Department, as well as the Attorney-General and the Minister. By consent on 3 February 2009, it was ordered that Mr Bennett be removed as a party to the proceeding. The object of the proceeding was to obtain an order that each of the Attorney-General and the Minister make a decision on Ms Bienstein's request for documents and provide Ms Bienstein with notice of the decision. On 28 January 2009, the Attorney-General and the Minister filed a notice of objection to the competency of that proceeding, contending that the application was filed outside the time limits set out in s 11(3) and (4) of the ADJR Act, and that the Attorney-General and the Minister were not under any duty, and did not have any power, to make decisions under the FOI Act, and consequently there was no failure to make decisions they had a duty to make, within s 7 of the ADJR Act. Proceedings numbers VID 563 of 2008 and VID 1 of 2009 were heard together. The legislation Section 11 of the FOI Act provides: (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document. (2) Subject to this Act, a person's right of access is not affected by: (a) any reasons the person gives for seeking access; or (b) the agency's or Minister's belief as to what are his or her reasons for seeking access.