mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: applied
is submitted on the part of the applicant that the decision to proceed failed to comply with the obligations of s 425 in the context of the Act as it then stood and was also a breach of the rules of procedural fairness sufficient to amount to jurisdictional error. I am not satisfied that this was a breach of s 425 of the Act for the reasons explained by Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (NAHF) [2003] FCA 140 ; (2003) 128 FCR 359, particularly at [25] [30]. However, I am satisfied, in the particular circumstances of this case, that what occurred was an unreasonable refusal of an opportunity to present a case sufficient to breach the rules of natural justice or procedural fairness, again as generally explained by Hely J in ( NAHF ) at [31] [39], that reasoning being supported, at least, by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553. I also refer to the passage relied upon by counsel for the applicant from the judgment of Gummow and Gaudron JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at [40] .
Case: Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887
Outcome: cited
reasons for judgment should be read in conjunction with those which I delivered on 14 August 2009: see Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No2) [2009] FCA 887. Pursuant to the directions given on 14 August 2009, the Australian Communications and Media Authority (the Authority), as Applicant, served upon the Respondents, which and whom I have mentioned, written submissions together with affidavits to be relied upon in respect of penalty or otherwise identified affidavits in respect of which reliance was to be placed. For their part none of the named Respondents has chosen to appear today. That, of course, is their perfect right. One of them, Mr Salcedo, did, though, choose to correspond with the Registry of the Court. He did this by a letter dated 28 September 2009 received by the Registry that day. That letter now forms part of exhibit 2. A subsequent exchange of correspondence occurred as between the Registry and Mr Salcedo on the subject of whether it was his intention that the letter stand as his submissions in relation to the penalty hearing.
Case: J McPhee and Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532
Outcome: followed
under the Trade Practices Act , it is relevant to take into account whether the conduct that contravened the Act was systematic, deliberate or covert: see J McPhee and Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [158] . In this case, the contravening conduct might aptly be described by each of those adjectives. In other words, it was systematic, it was deliberate and, materially, covert in terms of the ability of those mobile phone users preyed upon to ascertain readily the identity of their predator if they were disposed to seek recourse to the courts to recover moneys lost. I shall elaborate a little further on that aspect in a moment.
Case: Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363 ; (1985) 4 FCR 296
Outcome: followed
in terms of Trade Practices Act authorities, there is useful guidance on the role of both specific and general deterrence in the imposition of penalties. In Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363 ; (1985) 4 FCR 296 at pages 297 to 298, Toohey J, then a judge of this Court, remarked: The penalty should be such as to deter not only the particular offender but others who may be disposed to engage in prohibited conduct of a similar kind. That, in my opinion, is a particularly weighty consideration in relation to Spam Act contraventions. This case discloses on the evidence that while it is possible for a regulatory authority, through diligent investigation, to detect not only those corporations but those individuals involved in contraventions, the task is not an easy or an inexpensive one. It consumes public resources which might otherwise usefully be deployed to other ends. That being so, penalties in respect of contraventions must be such as to deter the unscrupulous from taking a calculated business risk. In other words, in my opinion, penalties must be of such an order that having regard to particular gains which might be involved, it is in effect commercial suicide to seek those gains via contraventions of the Spam Act . Sentiments such as these are evident in prior authority.
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285
Outcome: followed
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at pages 294 to 295 (NW Frozen Foods), a Full Court opined: The court should not leave room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay ...
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031
Outcome: followed
like effect is the following observation of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031 at [15]: The penalty must be sufficiently high that a business, acting rationally and in its own best interest, will not be prepared to treat the risk of such a penalty as a business cost.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281
Outcome: followed
course, a penalty should not be so high as to be oppressive, but it is important in this regard to recall exactly what is meant by that sentiment. That was, with respect, aptly and accurately stated by Merkel J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 (Leahy Petroleum (No 2)) at para 9 as follows, (and this is a reference to observations made by Smithers J in a case, Trade Practices Commission v Stihl Chain Saws (Australia) Pty Ltd (1978) ATPR 40-091 , which had been referred to by Burchett and Kiefel JJ in NW Frozen Foods): I therefore respectfully agree with the observation of Smithers J, referred to by Burchett and Kiefel JJ in NW Frozen Foods, to the effect that, a penalty that is of no greater than is necessary to achieve the object of general deterrence, will not be oppressive.
Case: Trade Practices Commission v Stihl Chain Saws (Australia) Pty Ltd (1978) ATPR 40-091
Outcome: cited
course, a penalty should not be so high as to be oppressive, but it is important in this regard to recall exactly what is meant by that sentiment. That was, with respect, aptly and accurately stated by Merkel J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 (Leahy Petroleum (No 2)) at para 9 as follows, (and this is a reference to observations made by Smithers J in a case, Trade Practices Commission v Stihl Chain Saws (Australia) Pty Ltd (1978) ATPR 40-091 , which had been referred to by Burchett and Kiefel JJ in NW Frozen Foods): I therefore respectfully agree with the observation of Smithers J, referred to by Burchett and Kiefel JJ in NW Frozen Foods, to the effect that, a penalty that is of no greater than is necessary to achieve the object of general deterrence, will not be oppressive.
Case: Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357
Outcome: considered
is not one of those cases of the kind encountered in the State criminal courts where, by reference to a high volume of analogous criminal conduct, it is possible to set, and then for sentencing judges to have regard to, particular benchmarks derived from guidance given by a Court of Appeal. I have already referred to theoretical maximums that one might derive in respect of the corporate Respondents, and to the ability to make an estimation of theoretical maximums in respect of individuals. In Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 Gleeson CJ and Gummow, Hayne and Callinan JJ, in relation to maximum sentences said at [30]: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: "A maximum sentence fixed by parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that parliament regarded the previous penalties as inadequate]." And then at [31]: It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick. I turn to look at particular factors designated in s 24 as relevant. Obviously enough, these factors are measured against the matters pleaded in the statement of claim, and the evidence upon which the Authority seeks to rely and of which notice has been given to the particular Respondents; in particular, affidavits of Mr Weber, filed on 12 May, 13 May, and 21 May 2009. Nature and Extent of Contraventions
Case: Wood v Dancertext Pty Ltd [2007] FMCA 1410
Outcome: considered
is relevant to note that Mr Owen was the sole director of IMP when that company was the subject of an infringement notice issued by the authority pursuant to the Spam Act . It is also relevant to note that Mr Owen was an individual respondent in proceedings in the Federal Magistrates Court against a company, Dancertext, and him: see Wood v Dancertext Pty Ltd [2007] FMCA 1410 (Dancertext). The conduct described in the reasons for judgment of Raphael FM bears particular comparison with the subject of the present proceedings. Mr Salcedo Mr Salcedo was the manager of IMP from June 2006 to May 2007. He was the manager of Winning Bid from April 2007 and the manager of Mobilegate from August 2007 to April 2009. There is also a basis for regarding him, de facto, as a director of Mobilegate even prior to his taking up that position in April 2009. In June 2006, Mr Salcedo corresponded with the Authority on behalf of IMP in relation to complaints which came to form the basis of the infringement notice to which I have referred already.
Case: Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146
Outcome: referred to
I also reject the attack on the validity of the assignment. It was put that Mr Whiting although a director of Cellite Sales did not have authority to execute the assignment on its behalf. There are several reasons why I will not accept this contention. For one thing, the articles of association (or constitution) of the company would tell me what authority each director has, but the articles were not tendered. Therefore, I do not know on what basis I should assume that a director cannot bind the company in a transaction of the kind under consideration. Secondly, even if there be any lack of express authority, I would apply the indoor management rule for there is no reason to think that Mr Scrinis, who dealt with Mr Whiting as the person who had carriage of the sale transaction, had any reason to doubt the latter's authority to bind the company: Northside Developments Pty Ltd v Registrar-General [1990] HCA 32 ; (1990) 170 CLR 146. 13 At the time Carrera Lighting sold its lighting business to the applicant, the respondent was no longer manufacturing the Cellite; it had not manufactured the light for some years. However, and perhaps prompted by the sale, it decided to resume manufacture. Phil Carney, a director of the respondent, got in touch with Mr Shead and asked him whether there was any reason why the respondent could not make and sell the Cellite. According to Mr Shead, he told Mr Carney: "You can't sell the product as a Cellite and you can't use the same diffuser that's being used on the Cellite fitting." Mr Carney was not called to give his account of this discussion. 14 At all events, shortly after the conversation the respondent manufactured and sold to Pulvin Lighting Wholesalers approximately 415 Centurions. The sale was part of a tender for work at the Kempsey Gaol. The applicant had itself tendered for the supply of lights for the Kempsey Gaol, but lost the tender to the respondent, a fact which it only discovered some time later.
Case: D Sebel &amp; Co Ltd v National Art Metal Co Pty Ltd (1965) 10 FLR 224
Outcome: applied
Section 17(1)(a) provides that a design shall not be registered in respect of an article if the design "differs only in immaterial details or in features commonly used in the relevant trade from a design that, before the priority date in respect of the application for registration, was registered ...". Where, as is this case, the prior art is prolific it will often be that small differences will be regarded as "substantial", rather than "immaterial" differences. See generally Ricketson &amp; Creswell, The Law of Intellectual Property: Copyright, Designs &amp; Confidential Information , vol 2 [21.80]. Put another way, it is important not to allow the existence of prolific prior art to rob a design of its value. As Jacobs J said in D Sebel &amp; Co Ltd v National Art Metal Co Pty Ltd (1965) 10 FLR 224 at 227, the differences in designs can be "a subtle thing". 21 In a case such as this it is important to keep in mind that a design will not be new or original where the difference between the design and the prior art results from the introduction of common trade variants into an old design. For example, changing the width of the base depending upon the number of fluorescent tubes to be accommodated is a common trade variant. So also is a change in length to accommodate a longer (and therefore stronger wattage) fluorescent tube. 22 There are some similarities in the configuration of the AVS Light and the registered design, namely, both are of continuous rectangular cross-section with a base and diffuser portion extending the whole length of the luminare, and both have two end caps with at least one screw in their top surface that cover the ends of the base and the diffuser. However, the AVS Light and the registered design have a number of differences in their configurations. They also vary in their form and overall shape. The principal areas of difference in configuration between the AVS Light and the registered design are the differing heights of the continuous cross-sections; the base of the AVS Light is approximately half the overall height whereas the base of the registered design is approximately a third the overall height; the height of the diffuser of the AVS Light is approximately half the overall height whereas the height of the diffuser of the registered design is approximately two-thirds the overall height; the length of the AVS Light end caps are approximately two-thirds the overall height while the registered design has end caps approximately equal in length to the overall height. The AVS Light and the registered design also differ in form and shape: the front face of the end caps of the AVS Light are flat whereas each end cap of the registered design has a raised lower portion or step on its front face; the radius on the top edges of the end caps of the AVS Light are approximately one-fifth of its width, compared to radius on the top edges of the end caps of the registered design which are approximately one-tenth of the width of the registered design.
Case: Walker &amp; Co v AG Scott (1892) 9 RPC 482
Outcome: cited
These differences in configuration, form and shape are "sufficient to impart the character of novelty and originality to the whole" ( Walker &amp; Co v AG Scott (1892) 9 RPC 482 at 485) to distinguish the registered design from the AVS Light. 24 I used the same approach I detailed above to compare the configuration (that is the length versus width and height versus width of the overall light and individual components such as the end caps) and form and shape (focussing on the radius of the edges of the end caps, the positioning of the screws and the presence or absence of a step) of the registered design with the other prior art including in particular the Gayline, the Loira Weather Proof fluorescent, the Minilux and the Regency Series light. The differences in configuration, form and shape between the registered design and these luminaries are more pronounced than the differences I observed between the registered design and the AVS Light. The differences leave me with the impression that the registered design is sufficiently new or original to distinguish it from that prior art referred to. 25 This brings me to the case on infringement. Here, by reason of s 30 of the 1906 Act, there are two issues to be determined. First, is the Centurion an obvious imitation of the registered design (does it appear to be a copy although there are some differences) and, second, is it a fraudulent imitation (with differences made to disguise copying)?
Case: Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435
Outcome: cited
On this aspect I propose to apply what was said by Gummow J in Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435 at 440. There he summarised the principles to be applied when deciding whether a particular product was an infringement of a registered design: "(i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner."
Case: Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638
Outcome: cited
The method by which the applicant's damages are to be calculated has been explained by the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 at 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring... But unless the chance is so low as to be regarded as speculative say less than 1 per cent or so high as to be practically certain say over 99 per cent the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring; but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." See also Mallet v Monagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219.
Case: Mallet v Monagle [1970] AC 166
Outcome: referred to
The method by which the applicant's damages are to be calculated has been explained by the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 at 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring... But unless the chance is so low as to be regarded as speculative say less than 1 per cent or so high as to be practically certain say over 99 per cent the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring; but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." See also Mallet v Monagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219.
Case: Davies v Taylor [1974] AC 207
Outcome: referred to
The method by which the applicant's damages are to be calculated has been explained by the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 at 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring... But unless the chance is so low as to be regarded as speculative say less than 1 per cent or so high as to be practically certain say over 99 per cent the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring; but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." See also Mallet v Monagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219.
Case: Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
Outcome: cited
In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and, in light of the Full Court's decision in Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act , which provides as follows: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made ... if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 6 There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal.