mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
Outcome: applied
In Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 93A-B, Burchett J (with whom Lehane J agreed at 104F) applied an earlier statement he had made in Autodesk Inc v Yee (1996) 68 FCR 391 at 394 that in Australia additional damages may be given upon principles corresponding to those governing awards of aggravated and also exemplary damages at common law. He said that the Act had objectives other than compensation (75 FCR at 93E-F). Each of the factors referred to in s 115(4)(b) is sufficient in itself to sustain an award of additional damages. It is not necessary that each of them must be proved, rather that the relevant conduct of the defendant or respondent in the circumstances warrants an award. Tamberlin J came to a similar conclusion (75 FCR at 102E-104E). He noted the importance of preserving a broad unfettered discretion in relation to additional damages so far as quantum was concerned (75 FCR at 104D) and, that broad discretion should not be formulated in any arithmetic or mechanical way (75 FCR at 104C). I do not think that this is a case of mere mistake or neglect (75 FCR at 93C; Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70; (1975) 12 ALR 685 at 90). 200 I think that Mr Chong's attitude, which was also Monster's, towards the non-payment of royalties to APRA and AMCOS was quite flagrant. Mr Chong thought he could get away without paying for what was due just as he did with trying to get away with using other people's rights without having first made any, let alone, proper arrangements for their use. I think there should be an appropriate marking of the Court's disapproval by a significant award (see Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 102-103; cp: Australian Performing Right Association Ltd v Pashalidis (2000) 48 IPR 610 at 619 [32] per Moore J). 201 Monster's and Mr Chong's conduct merits a substantial amount of additional damages being awarded so as to mark disapproval of its infringing conduct and to deter others from engaging in similar behaviour. During the 3 year period to 30 June 2006 Monster's total revenues from all its telecommunications service providers accounts total over $19 million. These include considerable revenues generated by the infringements. But the use of ringtone downloads was a means of attracting Monster's customers to all its advertised products. In my opinion, on the basis of my findings, I should fix the amount of additional damages at $100,000.
Case: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 
Outcome: applied
Monster argued that the offer of 28 October 2005 was open to be accepted over three months later on 7 February 2006. In general, the law implies that when no time limit for the exercise of a right is stipulated, the right may be exercised within a reasonable time unless there are indications to the contrary: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 at 13 per Dixon J. I am of opinion that this statement of the rule, coming from a case in contract, is just as applicable to a case where an offer to enter into a contract is made. Ordinarily in contract, absent an express provision to the contrary, where no time is fixed for performance, the parties are, or the party upon whom the obligation is cast is, obliged to perform within a reasonable time: see e.g. Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 at 545-546 per Gibbs CJ, 567 per Brennan J (with whom Stephen J agreed). And, in Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 at 197 Dixon CJ (with whom McTiernan J agreed) said that the implication of law, where a partnership deed limited no time for the exercise of an option, is that the option had to be exercised within a reasonable time. Dixon J observed that the stipulations contained in the relevant clause itself affected what a reasonable time was. Williams J, came to a like conclusion (at 98 CLR at 199).
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436
Outcome: followed
Their Honours' approach is not inconsistent with Lord Reid's or Lord Diplock's approaches. After all, the purpose of construction of contracts is to ascertain by reference to the words used in the factual matrix in which the parties dealt with one another what an objective person would reasonably understand the parties to have intended. And, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 at 439 [10] ; [2002] HCA 5 ; 186 ALR 289 at 293: ' [10] In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1381-1383-1385; [1971] 3 All ER 237 at 239-241; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-997; [1976] 3 All ER 570 at 574-576) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574) "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: ((1982) [1982] HCA 24 ; 149 CLR 337 at 401) "The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 
Outcome: applied
The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite &amp; Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging. 134 The rights and liabilities of the parties to a contract are determined by a reference to what each party by words or conduct would have led a reasonable person in the position of the other party to believe ( Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ). I am of opinion that the same principle should be applied to the evaluation of whether an offer, the acceptance of which would bring the parties into an actual contractual relationship, is capable of acceptance. A reasonable person in the position of the parties would have regarded the offer of 28 October 2005 as not remaining open for an indefinite time. Such a person would have said on 7 February 2006 that the offer of 28 October 2006 had lapsed some considerable time before.
Case: Universal Music Australia Pty Limited v Cooper [2005] FCA 1878
Outcome: cited
I am satisfied that there is a real risk that Monster and Mr Chong will continue to infringe APRA's and AMCOS' copyrights unless restrained. It is appropriate to grant injunctive relief to prevent Monster's continuing infringements: Universal Music Australia Pty Limited v Cooper [2005] FCA 1878 at [13] . 204 Having regard to my findings, it is necessary for calculations to be made as to the precise sums to be awarded by way of damages. I will direct the applicants to bring in short minutes of order to give effect to my reasons. This will allow the respondents to check the calculation of any royalties. It follows that the respondents should pay the applicants' costs. I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 December 2006 Counsel for the Applicant: Mr MJ Leeming SC and Ms K Deards Solicitor for the Applicant: Banki Haddock Fiora Counsel for the Respondent: Mr IM Jackman SC and Mr JL Lazarus Solicitor for the Respondent: CG Gillis &amp; Co Date of Hearing: 2-6 October 2006 Date of Judgment: 21 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1806.html
Case: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12 ; (1985) 155 CLR 448
Outcome: applied
An award of additional damages should not impose a punishment greater than would be imposed if the conduct were criminal ( XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12 ; (1985) 155 CLR 448 at 463 per Gibbs J). The defendant's financial circumstances are a relevant consideration ( XL 155 CLR at 461 per Gibbs CJ, 472 per Brennan J) as has been the period of the conduct and its circumstances.
Case: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379
Outcome: applied
submission fails to take into account s 435(1) of the Migration Act 1958 (Cth). That section provides that ' a member [of the Refugee Review Tribunal] has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal '. This is the same protection and immunity as a Justice of the High Court: Administrative Appeals Tribunal Act 1975 (Cth), s 60. This immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inference being drawn from a failure by a member of the tribunal to give evidence: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601, paras 25, 118, 196-199. The rule extends to a failure to give evidence in relation to any aspect of the decision-making process including whether or not the tribunal had read, obtained, considered or taken into account particular documents: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379.
Case: Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 ; (2000) 170 ALR 575
Outcome: applied
may be that the appellant seeks to distinguish between inferences that may be drawn from the tribunal's failure to give evidence that it had received the part B documents and inferences that may be drawn from the department's failure to give evidence that it had provided the tribunal with these documents. While s 435(1) does not in terms apply to anyone other than members of the tribunal, Gaudron J said in Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 ; (2000) 170 ALR 575 at [10] that the protection and privilege conferred by s 435(1) of the Act must extend 'not merely to disclosure by the individual member concerned, but [also to] the revelation, by whatever means, of any aspect of his or her decision-making process'. It follows that the Department's failure to give evidence cannot attract a Jones v Dunkel inference.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
and this is the third point, the appellant contends that it was open to the first respondent to prove that the tribunal had received the part B documents and the first respondent chose not to lead evidence on this point. Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 permits the drawing of the inference that the documents were not provided. It may be that the appellant seeks to distinguish between inferences that may be drawn from the tribunal's failure to give evidence that it had received the part B documents and inferences that may be drawn from the department's failure to give evidence that it had provided the tribunal with these documents. While s 435(1) does not in terms apply to anyone other than members of the tribunal, Gaudron J said in Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21 ; (2000) 170 ALR 575 at [10] that the protection and privilege conferred by s 435(1) of the Act must extend 'not merely to disclosure by the individual member concerned, but [also to] the revelation, by whatever means, of any aspect of his or her decision-making process'. It follows that the Department's failure to give evidence cannot attract a Jones v Dunkel inference.
Case: Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70
Outcome: cited
are at least two reasons why the appellant cannot use the agreed statement of facts in this way. First, and most obviously, the fact that the department may not have provided the tribunal with part B documents in other cases is irrelevant here. Each case must be decided on its own facts. Second, the appellants submission fails to take into account the nature and object of agreed facts which, like pleadings, aim to narrow the issues to be tried in a particular action: see by way of analogy Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70, 85-86. The admissions are not transportable to other proceedings.
Case: Dingaal Tribe v State of Queensland and Ors [2003] FCA 999
Outcome: cited
position adopted in the notice signed by Gordon Charlie was consistent with Gordon Charlie's contentions before Cooper J in 2003 in Dingaal Tribe v State of Queensland and Ors [2003] FCA 999 that "under the traditional law and customs of the Dingaal people, he is the only person entitled, and thereby authorised, to make the claim for native title on behalf of the claim group" (at [14]). In that proceeding (QG6004 of 1998), Gordon Charlie and Jonathon Charlie as joint applicants sought a native title determination in respect of particular lands and waters on behalf of the Dingaal tribe. Gary Yoren, Ned Yoren, Elaine Baru and Louis Charlie applied pursuant to s 66B of the Act for an order that Yoren, Yoren and Baru replace Gordon Charlie and Jonathon Charlie as applicants on the footing that resolutions passed at a meeting at Hopevale on 14 April 2003 removed the authority of the existing applicants to maintain the claim on behalf of the claimant group. Cooper J found that notice of meeting had been given directly or indirectly to all members of the Dingaal claim group and that there was no traditional law or custom binding on the claim group preventing them from terminating the authority of Gordon Charlie and Jonathon Charlie (at [17] and [20]). Cooper J concluded that the authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants had been withdrawn by resolution of the meeting of the Dingaal clan and accordingly orders were made replacing Gordon Charlie and Jonathon Charlie with Gary Yoren, Ned Yoren and Elaine Baru.
Case: Gordon Charlie v Cape York Land Council [2006] FCA 1418
Outcome: cited
QG6004 of 1998 was a claim by the Dingaal People of native title rights and a claim of connection with Lizard Island and the islands offshore from Cape Flattery (and associated waters). On 28 February 2006, Dingaal clan members convened at the Church Hall in Hopevale to consider a presentation in relation to the claim by the National Native Title Tribunal, a report and presentation by a consultant anthropologist, Dr Fiona Powell, and a presentation on future tasks to be undertaken by the Land Council. The claim group members unanimously resolved to amend the claim to include other claimant groups asserting rights in relation to the land and waters, namely, the Thanil, Nguuruumungu, Gulaal, Ngaatha and Thittaar Peoples. That resolution made necessary an amendment to the application so as to alter the area of land and waters the subject of the claim and the composition of the claim groups. The Land Council sought to convene a meeting of Dingaal members on 31 October 2006 at 11.00am at Hopevale to authorise amendments to the native title application. Gordon Charlie sought to restrain the conduct of the meeting that morning on the footing that the Charlie family incorporates a sub-group family described as the Brim family and members of that family had not been invited to the meeting nor incorporated within the claim. The Brim family members were said to be in tension with the Baru and Yoren families. Gordon Charlie was unsuccessful in his application for an injunction ( Gordon Charlie v Cape York Land Council [2006] FCA 1418). The meeting did not proceed on 31 October 2006 due to the death of Mr Gary Yoren, an applicant member of the Dingaal claim group. The authorisation meeting was reconvened for 29 November 2006 and 30 November 2006 at Hopevale. Gordon Charlie sought to restrain the meeting on the morning of 29 November 2006. He did so based on the contention that the Baru and Yoren People are not part of the Dingaal clan. He contended that Brim family members are part of the Dingaal clan through Charlie family members and therefore seven identified members of the Brim family and some family members associated with some of those individuals, ought to have been invited to the meeting. Gordon Charlie contended that Brim family members ought to be joined in the claim; they derive their rights through identified Charlie clan members; and Baru and Yoren families are not members of the Dingaal clan. In that proceeding, Dr Fiona Powell swore an affidavit concerning her extensive anthropological research in relation to the Dingaal claim. Dr Powell said that she had revealed no evidence which suggested a connection between the Charlie family and the Brim family or connections on the part of the Brim family to the area claimed in the Dingaal application. Dr Powell identified the foundation for that view.
Case: Gordon Charlie v Cape York Land Council (No. 2) [2006] FCA 1683
Outcome: cited
relevance of that proceeding for present purposes is simply that Gordon Charlie continued to assert a different composition of or foundation for the Dingaal clan notwithstanding the Hopevale determination and the terms recited in the Rules of Walmbaar adopted by Gordon Charlie and other Charlie family members. First, the Dingaal clan was said to properly embrace the Brim family and secondly, the Baru and Yoren families were said not to be part of the Dingaal clan. Gordon Charlie was unsuccessful in the injunction application ( Gordon Charlie v Cape York Land Council (No. 2) [2006] FCA 1683). In that proceeding, Gordon Charlie contended that a meeting of Dingaal native title clan members and some non-members took place at Cooktown at the "Lions Park" on 3 July 2005. The meeting was said to have passed a number of resolutions including a resolution that only Charlie family members have standing to maintain a Dingaal clan native title claim. The minutes of the contended meeting record the attendance of Vernon Yoren, Henry Baru, Elaine Baru, Phyllis Greenway (nee Baru) and Kevin Yoren. However, the evidence of a Hopevale Lutheran Minister, Reverend Jantke, who presided at the relevant burial services and who had possession of Lutheran Church records, demonstrated that all of those individuals had died well before 3 July 2005 which caused the Court to conclude that the minutes of the meeting and contentions in relation to the meeting were unreliable. That evidence, of course, was relevant only for the purposes of the proceeding in question. However, the fact of that controversy in that proceeding remains a relevant historical fact in explaining the subsequent chronology of events by which the resolution of the intra-indigenous issues concerning the composition of the Dingaal clan were sought to be resolved.
Case: Jango and Ors v Northern Territory and Ors [2006] FCA 318 ; (2006) 152 FCR 150
Outcome: cited
addition, the claim as framed goes beyond the land and waters the subject of the Hopevale determination. Before a determination as to compensation can be made by the Court in respect of relevant lands and waters, there must first be a determination of native title in relation to those lands and waters ( Jango and Ors v Northern Territory and Ors [2006] FCA 318 ; (2006) 152 FCR 150 per Sackville J; Jango v Northern Territory [2007] FCAFC 101 ; (2007) 159 FCR 531 at [66] [74] and [83] per French, Finn and Mansfield JJ). To the extent that the compensation application goes beyond the land and waters the subject of the Hopevale determination, it must necessarily fail. Walmbaar concedes that the compensation application would need to be amended to remove any claim in respect of Lot 9 on Crown Plan BS222 Lot 10 on Crown Plan BS224 and Lot 11 on Crown Plan BS268.
Case: Jango v Northern Territory [2007] FCAFC 101 ; (2007) 159 FCR 531
Outcome: cited
addition, the claim as framed goes beyond the land and waters the subject of the Hopevale determination. Before a determination as to compensation can be made by the Court in respect of relevant lands and waters, there must first be a determination of native title in relation to those lands and waters ( Jango and Ors v Northern Territory and Ors [2006] FCA 318 ; (2006) 152 FCR 150 per Sackville J; Jango v Northern Territory [2007] FCAFC 101 ; (2007) 159 FCR 531 at [66] [74] and [83] per French, Finn and Mansfield JJ). To the extent that the compensation application goes beyond the land and waters the subject of the Hopevale determination, it must necessarily fail. Walmbaar concedes that the compensation application would need to be amended to remove any claim in respect of Lot 9 on Crown Plan BS222 Lot 10 on Crown Plan BS224 and Lot 11 on Crown Plan BS268.
Case: Deniliquin Local Aboriginal Land Council [2001] FCA 609
Outcome: cited
of the kind sought by the applicant have been previously made ( Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).
Case: Kennedy v Queensland (2002) 190 ALR 707
Outcome: cited
of the kind sought by the applicant have been previously made ( Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).