mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122
Outcome: followed
In Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) (2007) 239 ALR 762 ( Visy No 2 ), Heerey J was asked to consider claims of litigation privilege made with respect to 216 ACCC documents, including the Hodgson Interview transcript now at issue: Visy No 2 at [6]. His Honour found that litigation was reasonably anticipated as at 15 December 2004 - that is, prior to the Hodgson interview on 17 December 2004: Visy No 2 at [78]-[93]. Heerey J also found that the documents and communications in question were generated for the dominant purpose of amassing and assessing evidence to be used in contemplated civil penalty proceedings for price fixing against Visy: Visy No 2 at [97]-[101]. The Full Court of this Court upheld the judgment on appeal: Visy Industries Holdings Pty Ltd v ACCC (2007) 161 FCR 122.
Case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Outcome: cited
I make the following rulings in relation to each of the documents or classes of documents sought by the applicant having regard to the provisions of O 15 r 8. I accept that the language of the Rule allows that additional discovery may be ordered on the basis that it may lead to a train of inquiry: Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563. It is not appropriate, as a matter of routine, to require a wider range of discovery under O 15 r 8. In this respect I do not accept that additional discovery under the so-called Peruvian Guano test is routinely available. By that I refer to the test mentioned in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55. 8 The rulings which follow refer to the classes of documents in relation to which discovery has not been given. They are as follows: Paragraph in the Motion Ruling 1(a) Discovery allowed. 1(c) Discovery allowed. 1(d) Discovery declined chain of inquiry justification insufficient. 1(e) Discovery declined class of documents not defined by reference to relevance. Chain of inquiry insufficient. 2(a) Discovery allowed, limited to documents evidencing the purchase and/or payment by the second respondent for product labels for the sale of automotive products exported by the second respondent to the sixth respondent and/or Gold Leaf Products Co Ltd for the period 12 February 2004 to 31 January 2005. 2(b) Discovery declined relevance not established. 2(d) Discovery allowed. 2(e) Discovery declined relevance not established. 2(f) Discovery allowed, limited to labels proof read at the meeting of 1 March 2004. 2(i) Discovery declined class not defined by reference to criteria of relevance. 2(j) Discovery declined class not defined by reference to criteria of relevance. 2(k)(i), (ii), (viii) to (xi) Discovery declined, relevance not established. 2(l) Discovery allowed. 2(n) Discovery declined claim not defined by criteria of relevance. 3(a) Discovery allowed. 3(b) Discovery allowed. 3(c) Discovery declined. 3(d) Discovery declined. 3(e) Discovery allowed. 4(a) Discovery allowed. 9 I will make orders to give effect to these rulings. I will not direct that the respondents revisit their earlier discovery with separate affidavits. The costs of the motion so far as it related to particular discovery will be costs in the cause. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 17 August 2007 Counsel for the Applicant: Mr G Rabe Solicitor for the Applicant: Stables Scott Counsel for the Respondent: Mr R Grayden Solicitor for the Respondent: Hammond Worthington Dates of Submissions: 23 and 31 July 2007 Date of Judgment: 17 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1259.html
Case: Wolff v Donovan (1991) 29 FCR 480
Outcome: cited
The relevant principles were correctly applied by the learned Federal Magistrate. That is to say, he directed himself in accordance with the well-known test in Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224 and 225 and also at 236. Reliance was also placed by the Federal Magistrate on the Full Court decision of this Court in Wolff v Donovan (1991) 29 FCR 480 at 481 and again at 486.
Case: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212
Outcome: cited
The relevant principles were correctly applied by the learned Federal Magistrate. That is to say, he directed himself in accordance with the well-known test in Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224 and 225 and also at 236. Reliance was also placed by the Federal Magistrate on the Full Court decision of this Court in Wolff v Donovan (1991) 29 FCR 480 at 481 and again at 486.
Case: Minister for Immigration v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343
Outcome: cited
While it is clear that the applicant's first set of challenges to the initial decision of the tribunal was properly grounded, since he succeeded before Gyles J, the second challenges failed. The current challenge is a further attempt to attack the 2006 decision of the tribunal. For the reasons that I gave in SZGJY v Minister for Immigration &amp; Citizenship [2008] FCA 888 , it is clear that the tribunal had no jurisdiction on the second application for review filed at the end of last year: see also Minister for Immigration v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343 at 355-356 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Case: SZGJY v Minister for Immigration &amp; Citizenship [2008] FCA 888
Outcome: followed
While it is clear that the applicant's first set of challenges to the initial decision of the tribunal was properly grounded, since he succeeded before Gyles J, the second challenges failed. The current challenge is a further attempt to attack the 2006 decision of the tribunal. For the reasons that I gave in SZGJY v Minister for Immigration &amp; Citizenship [2008] FCA 888 , it is clear that the tribunal had no jurisdiction on the second application for review filed at the end of last year: see also Minister for Immigration v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343 at 355-356 [30] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Case: Zubair v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344
Outcome: followed
It is manifest that the tribunal never had any jurisdiction to decide a subsequent application to review the 2001 decision of a delegate once the 2006 decision of the tribunal had been given and not set aside in the courts. That decision replaced the delegate's decision and it was the only relevantly operative decision in law: Zubair v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344. 10 I am of opinion that the application should be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 12 June 2008 Applicant: Appeared in person Solicitor for the First Respondent: P Snell, Sparke Helmore Date of Hearing: 8 May 2008 Date of Judgment: 8 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/886.html
Case: Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533
Outcome: referred to
is a fundamental principle of the law of torts that to maintain an action for conversion, the plaintiff must have either actual possession of the goods or the immediate right to possession at the time of the conversion: Penfolds Wines Proprietary Limited v Elliott [1946] HCA 46 ; (1946) 74 CLR 204 at 226-227; Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 549; F.A. Trindade, P. Cane &amp; M. Lunney, The Law of Torts in Australia (4 th ed, 2007) at 209-210.
Case: Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53
Outcome: referred to
Branson J, at [38], and Kenny J, at [145], referred to the decision of a Full Court in Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53. There, Sheppard, Foster and Hill JJ held at 61 that a "studied and deliberate course of action" in which a respondent had decided to ignore the applicant's rights and to allow a situation to develop which he must have known would be likely to result in an infringement, amounted to an authorisation. Jain was an authority on the question of the degree of control that was required to give rise to an authorisation prior to the enactment of s 36(1A) and s 101(1A). But as Kenny J observed at [140] and [146], that case emphasises the breadth of the concept of authorisation and that a failure to take reasonable steps to prevent an infringing act is a relevant consideration to a finding of authorisation. The degree of control, the nature of the relationship between the parties and the question of "reasonable steps" are now enshrined in s 36(1A)(a), (b) and (c), which I am required to take into account in determining whether the claims of "authorisation" are made out. Three separate tests have been stated. The first is the " Performing Right Society test", namely whether the director "directed or procured" the company's infringement. The second is the " Mentmore test", that is whether the director or officer "makes the tortious act his own" by deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement: see the discussion of Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [123] ff.
Case: Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298
Outcome: distinguished
is there any substance in the submission that the respondents had an implied licence to exploit the copyright in those components. The position here is quite different from that which occurred in the well established authorities that have considered the question of implied licence to use copyright materials; see Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298 ; Concrete Pty Limited v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577.
Case: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Outcome: referred to
it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .
Case: Briginshaw v Briginshaw [1938] HCA 34 ; [1938] 60 CLR 336
Outcome: referred to
I have said, the Aristocrat companies have the onus. Whether the standard is the balance of probabilities or the Briginshaw standard as was submitted by the respondents, there was nothing in the evidence adduced by Mr Coster which imposed any onus of proof on Global. To the extent that Global had any evidentiary onus, that was discharged by Mr Andrews' oral evidence and the documentary evidence to which I have referred. Although I have reached an adverse view of Mr Andrews' credit, it does not follow that I would reject all of his evidence as untruthful. It seems to me that Mr Andrews' evidence of the Play King transaction was consistent with the documentary evidence and I accept it. During the course of the hearing, the Aristocrat companies placed great weight on a bundle of business communications involving either the Global, Impact or Tonita respondents, or a combination of one or more of the groups of respondents. Second, although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] . Fourth, the position stated by the Full Court of the Federal Court exposes a difference of views on the question of whether the trier of fact must feel "an actual persuasion." Weinberg, Bennett and Rares JJ accepted that the Court must be so persuaded in Communications and Allied Services Union v ACCC at [31]. But that observation was based upon the statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; [1938] 60 CLR 336 at 361-362. In Qantas v Gama at [123] and [139], Branson J (with whom French and Jacobson JJ expressed general agreement) considered that the Briginshaw test has been replaced by the provisions of s 140 , and should be avoided due to its tendency to mislead.
Case: CBS Inc v Ames Records &amp; Tapes Ltd [1982] Ch 91
Outcome: referred to
reason for the House of Lords' decision appears to be the absence of control over the actions of the purchasers and the possibility of legitimate use rather than the inevitability of infringement: see 1053-1055; see also CBS Inc v Ames Records &amp; Tapes Ltd [1982] Ch 91 at 106 (per Whitford J). This is to be contrasted with the facts of the present case as is well illustrated by the email set out at [312]. Mr Allam was requested to provide game software and blank chips. I reject his denial that he knew the purpose to be the copying of the game software onto the chips in South America. It is true that Mr Allam had no real ability to control what took place in South America, but there was no possibility that the blank EPROMs were to be used for a legitimate purpose. It was inevitable that the EPROMs were to be used for the purpose of infringement. Moreover, there was other evidence which was indicative of unauthorised copying by the Tonita respondents. This was the existence of the Dataman software on the Loose HDD. Mr McKemmish's evidence that the Dataman software was operated on the Loose HDD gives rise to a very strong inference that the Tonita respondents used it to burn Aristocrat game software onto blank EPROMs: see [498]. When this evidence is taken into account, it makes more credible the evidence of Mr Channa that he saw Mr Allam burning EPROMs from an EPROM burning device: see [348].
Case: CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] UKHL 15 ; [1988] AC 1013
Outcome: distinguished
position here is quite different from that which existed in CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] UKHL 15 ; [1988] AC 1013. There, the House of Lords held that the sale of a high speed twin-tape recorder capable of reproducing music cassettes onto blank tapes was not an authorisation of copyright infringement.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: referred to
although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] .
Case: Concrete Pty Limited v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577
Outcome: distinguished
is there any substance in the submission that the respondents had an implied licence to exploit the copyright in those components. The position here is quite different from that which occurred in the well established authorities that have considered the question of implied licence to use copyright materials; see Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298 ; Concrete Pty Limited v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577.
Case: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380
Outcome: referred to
claim against the Tonita respondents is that they were engaged by the Global/Impact Joint Venture for reward, to supply services and to procure parts and equipment for the purposes of the joint venture and that they are "so personally involved in the commission of the unlawful act[s], that it is just that [they] should be rendered liable": Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] ; cf Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [1] , [74], [161]. In Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 , Kenny J and Branson J each endorsed a wide approach to the concept of "authorisation". French J agreed with the reasons given by each of them.
Case: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 ; [2001] All ER 700
Outcome: referred to
I have not been able to conduct a visual comparison of the infringing compliance plates with the Aristocrat companies' originals, the evidence is sufficient for me to infer that the test stated by the High Court in S.W. Hart &amp; Co Proprietary Limited v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472, 478 and 479 is satisfied. The Tonita respondents had prior access to the copyright works. From the material before me going to infringement of compliance plates, in particular the evidence of Mr Parsons, I infer the elements of resemblance, actual use and causal connection. The onus then passed to the Tonita respondents to rebut the inference of copying but they failed to discharge that onus: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 ; [2001] All ER 700 at 708-9.
Case: Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463 ; (2008) 165 FCR 149
Outcome: referred to
J cited the relevant passage from the decision of Tamberlin J with apparent approval in Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463 ; (2008) 165 FCR 149 at [133] .
Case: Gauci v Commissioner of Taxation of the Commonwealth of Australia [1975] HCA 54 ; (1975) 135 CLR 81
Outcome: referred to
is true, as was submitted on behalf of the Aristocrat companies, that some of the explanations given by Mr Andrews were revealed under cross-examination to be unacceptable. This reflects upon Mr Andrews' credit but it does not make good the propositions for which the Aristocrat companies contend. Disbelief of a witness on his or her credit does not amount to positive evidence of the opposite of what is disbelieved: Gauci v Commissioner of Taxation of the Commonwealth of Australia [1975] HCA 54 ; (1975) 135 CLR 81 at 87; J. D. Heydon, Cross on Evidence (7 th Aust ed) at [17,600]. The data matching exercise must be considered on the basis of the quality of the evidence adduced by the Aristocrat companies, as the foundation upon which the exercise was conducted. The question of the quality or sufficiency of the evidence raises two separate sub-issues. The first is the evidence pertaining to the OLGR records which formed the basis for the production of the "orange" and "yellow" serial numbers.
Case: Harding v Commissioner of Inland Revenue [1977] 1 NZLR 337
Outcome: referred to
authorities go so far as to establish that a bailment does not necessarily impose upon a bailee the obligation of redelivering the identical object that was bailed: Motor Mart v Webb at 781; Harding v Commissioner of Inland Revenue [1977] 1 NZLR 337 at 340.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
also follows in my view that the Aristocrat companies have failed to establish that Global knew or ought to have known of any infringement of its copyright in the components of the machines identified by Mr Coster. I will address the knowledge question in more detail when I deal with the "pattern of trade" and Jones v Dunkel submissions made by Mr Cobden. Mr Coster's evidence was that the local regulations in Peru require games and artwork on gaming machines to be in Spanish. He also gave evidence that, in his experience, there is a very significant problem of machines being "rebirthed" in Peru with the insertion of Spanish games and Spanish artwork. The Aristocrat companies submitted that I was entitled to draw an inference of knowledge from the failure of Global to call Mr Birks to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. I reject this submission for the following reasons. First, the rule in Jones v Dunkel only applies where a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18 ; (2000) 200 CLR 121 at [51] ; J.D. Heydon, Cross on Evidence (7 th Aust ed, 2004) at [1215], pp 41-42. The Aristocrat companies had the burden of proving the elements of secondary infringement. Once it appeared that the machines had been shipped from Mr Birks' premises, it was for the Aristocrat companies to establish the requisite level of knowledge on the part of Global. But absent any evidence of infringement by Mr Birks, or indeed any suggestion of such to Mr Andrews, the rule in Jones v Dunkel has no application. Second, the rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference: Cross on Evidence at [1215], p 41. Yet this is precisely what Aristocrat seeks to do. Third, even if the rule were applicable, the appropriate inference is that Mr Birks' evidence would not have assisted Global's case: Jones v Dunkel at 308, 312, 321. The rule could therefore not be elevated to the level at which the Aristocrat companies sought to put it, namely to draw an inference that Mr Birks' evidence would have been damaging to Global's case. It is true that Mr Birks swore an affidavit which was filed by Global and that a forensic decision was ultimately taken by Global not to call Mr Birks to give evidence. But the mere filing of an affidavit, and even a decision taken late in the trial not to rely on that evidence, cannot alter the effect of the three propositions which I have set out above as to the inapplicability or inutility of the rule in relation to the Play King transaction.
Case: The Koursk [1924] P 140
Outcome: referred to
J referred to Australian and English authority which support the abovementioned statement of principle including the decision of the High Court in Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574 and the seminal English case, The Koursk [1924] P 140.
Case: Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352
Outcome: referred to
it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .