mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177
Outcome: cited
relevant principles to applications under ss 52 and 53(e) of the TP Act are well established: see eg Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ); Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco Bell ). Whether a representation is likely to mislead or deceive is an objective question of fact, to be determined in all the circumstances: Taco Bell . It is sufficient if there is a real chance that the conduct or representation will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87. Importantly, whether conduct is misleading or deceptive or is likely to mislead or deceive must be determined in context. In Parkdale it was said at 199: It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by (sic) regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or (sic) course depend on all the circumstances.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: cited
a representation is likely to mislead or deceive is an objective question of fact, to be determined in all the circumstances: Taco Bell . It is sufficient if there is a real chance that the conduct or representation will mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87. Importantly, whether conduct is misleading or deceptive or is likely to mislead or deceive must be determined in context. In Parkdale it was said at 199: It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by (sic) regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or (sic) course depend on all the circumstances.
Case: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
test is an objective one for the Court upon the whole of the evidence. The test is whether an ordinary or reasonable person from the class of persons to whom the representation is made is likely to be misled or deceived: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ) at 85-7. In my view, it is unlikely that a reasonable group of persons seeing those communications would think about the place of origin of those artworks. There is no express representation about their place of origin. There is no real reason why, beyond the clear representation as to the Aboriginality of the artist, the reasonable consumer would advert to their place of origin. In other words, the particular conduct which is said to give rise by implication to the representation that the place of origin of the particular artworks is Australia does not, in my judgment, give rise to that representation. Indeed, as was pointed out in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555, s 52 is not expressed in terms of, and is not confined to, representations. The question is one of fact, namely whether the conduct complained of is likely "to lead into error" (per Gibbs CJ in Parkdale [1982] HCA 44 ; 149 CLR 191 at 198). Relevantly here, the question is whether the conduct, tested against ordinary and reasonable members of a section of the public, may have led into error those persons as to the place of origin of those particular artworks (as distinct from the Aboriginality of the artist). Campomar would indicate that the appropriate question is what would be the likely reaction of that section of the public to the particular conduct.
Case: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326
Outcome: cited
a representation has been made in advertising material, it must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326 at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 at [25] - [28] .
Case: Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157
Outcome: cited
a representation has been made in advertising material, it must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326 at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 at [25] - [28] .
Case: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3
Outcome: cited
a representation has been made in advertising material, it must be assessed not by a particular statement taken in isolation, but by the statement in its context and, where appropriate, in the surrounding circumstances: Trade Practices Commission v Optus Communications Pty Ltd &amp; Optus Mobile Pty Ltd (1996) 64 FCR 326 at 336-8; Australian Competition and Consumer Commission v Thorn Australia Pty Ltd [2004] FCA 157 at [13] - [14] ; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd [2003] FCA 3 at [25] - [28] .
Case: QDSV Holdings Pty Ltd (t/as bush Friends Australia) v Trade Practices Commission [1995] FCA 1431 ; (1995) 131 ALR 493
Outcome: discussed
QDSV Holdings Pty Ltd (t/as bush Friends Australia) v Trade Practices Commission [1995] FCA 1431 ; (1995) 131 ALR 493 ( QDSV Holdings ), the appellant was a wholesaler of soft toys. One of its products was a koala soft toy, which had a label attached to it with the words "Aussie Born" on one side, and the words "Made in Australia" on the other side, with smaller words "With Some Imported Components" beneath those words. The soft toys were designed in Australia, the components were manufactured in China, except for about 30% of the filling, and all the components were then imported into Australia, for assembly within Australia. The primary judge declared the labels were in breach of ss 52 and 53(eb) of the TP Act and made an order under s 80 of the TP Act. The Full Court dismissed an appeal from those orders and held that the labels were misleading and deceptive, although that the toys could fairly be described as having been designed and finished in Australia. Sackville J observed at 500: While it should not be assumed that purchasers are "extraordinarily stupid" ... neither should it be assumed that purchasers of products such as toy koalas will be scrupulous to analyse the nuances of the language the trader has chosen to use on labels attached to the merchandise ... The meaning conveyed by the labels will be assessed by construing the language employed, but will take account of such factors as the prominence given to particular slogans or phrases, the nature of the product itself and the expectations and likely understanding of consumers.
Case: Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997) 79 FCR 63
Outcome: cited
is no express representation that any of the carved wooden items were made in Australia. That has been the context in which a number of actions under s 53(eb) have been decided: see Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997) 79 FCR 63 ; Siddons Pty Ltd v Stanley Works Pty Ltd (1990) ATPR 41-044 ; QDSV Holdings ; Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101. The representation is said to arise by implication from the way in which the carved wooden items were promoted on the Website, and by the way in which the carved wooden bird was promoted on eBay.
Case: Siddons Pty Ltd v Stanley Works Pty Ltd (1990) ATPR 41-044
Outcome: cited
is no express representation that any of the carved wooden items were made in Australia. That has been the context in which a number of actions under s 53(eb) have been decided: see Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997) 79 FCR 63 ; Siddons Pty Ltd v Stanley Works Pty Ltd (1990) ATPR 41-044 ; QDSV Holdings ; Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101. The representation is said to arise by implication from the way in which the carved wooden items were promoted on the Website, and by the way in which the carved wooden bird was promoted on eBay.
Case: Trade Practices Commission v QDSV Holdings Pty Ltd [1995] FCA 1431 ; (1997) 59 FCR 301
Outcome: discussed
QDSV Holdings Pty Ltd (t/as bush Friends Australia) v Trade Practices Commission [1995] FCA 1431 ; (1995) 131 ALR 493 ( QDSV Holdings ), the appellant was a wholesaler of soft toys. One of its products was a koala soft toy, which had a label attached to it with the words "Aussie Born" on one side, and the words "Made in Australia" on the other side, with smaller words "With Some Imported Components" beneath those words. The soft toys were designed in Australia, the components were manufactured in China, except for about 30% of the filling, and all the components were then imported into Australia, for assembly within Australia. The primary judge declared the labels were in breach of ss 52 and 53(eb) of the TP Act and made an order under s 80 of the TP Act. The Full Court dismissed an appeal from those orders and held that the labels were misleading and deceptive, although that the toys could fairly be described as having been designed and finished in Australia. Sackville J observed at 500: While it should not be assumed that purchasers are "extraordinarily stupid" ... neither should it be assumed that purchasers of products such as toy koalas will be scrupulous to analyse the nuances of the language the trader has chosen to use on labels attached to the merchandise ... The meaning conveyed by the labels will be assessed by construing the language employed, but will take account of such factors as the prominence given to particular slogans or phrases, the nature of the product itself and the expectations and likely understanding of consumers.
Case: Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101
Outcome: cited
is no express representation that any of the carved wooden items were made in Australia. That has been the context in which a number of actions under s 53(eb) have been decided: see Australian Competition and Consumer Commission v Lovelock Luke Pty Ltd (1997) 79 FCR 63 ; Siddons Pty Ltd v Stanley Works Pty Ltd (1990) ATPR 41-044 ; QDSV Holdings ; Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101. The representation is said to arise by implication from the way in which the carved wooden items were promoted on the Website, and by the way in which the carved wooden bird was promoted on eBay.
Case: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546
Outcome: cited
my view, it is unlikely that a reasonable group of persons seeing those communications would think about the place of origin of those artworks. There is no express representation about their place of origin. There is no real reason why, beyond the clear representation as to the Aboriginality of the artist, the reasonable consumer would advert to their place of origin. In other words, the particular conduct which is said to give rise by implication to the representation that the place of origin of the particular artworks is Australia does not, in my judgment, give rise to that representation. Indeed, as was pointed out in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555, s 52 is not expressed in terms of, and is not confined to, representations. The question is one of fact, namely whether the conduct complained of is likely "to lead into error" (per Gibbs CJ in Parkdale [1982] HCA 44 ; 149 CLR 191 at 198). Relevantly here, the question is whether the conduct, tested against ordinary and reasonable members of a section of the public, may have led into error those persons as to the place of origin of those particular artworks (as distinct from the Aboriginality of the artist). Campomar would indicate that the appropriate question is what would be the likely reaction of that section of the public to the particular conduct.
Case: Thorp v C.A. Imports Pty Ltd (1990) ATPR 40-996
Outcome: cited
do not consider those cases provide any real assistance in the circumstances. As Sheppard J said in Thorp v C.A. Imports Pty Ltd (1990) ATPR 40-996 at 50,966, the question is one of fact and degree depending upon a consideration of the entirety of the steps required to manufacture the object in question. Of course, in addition, it is now necessary to apply ss 65AB and 65AE. The evidence shows that the cost to ADC of the carved wooden bird (and like objects) was under $10. The amount paid to Mr Goodridge for painting it was in excess of $30. The precise figures varied, according to the size of the objects. Even allowing for shipment costs, I find that s 65AB(c) of the TP Act would be satisfied, if there had been a representation that those artworks were Australian in origin. The remaining issue is whether those items were substantially transformed by being painted in Australia: s 65AB(b). The alleged country of origin representations did not attract ss 65AC or 65AD, so s 65AB(d) was also satisfied. That is a question of fact, informed by s 65AE. In my judgment, those artworks including the carved wooden bird were substantially transformed by being painted in Australia. There was in evidence an example of the carved wooden bird, unpainted (it is then purely a flat white in colour). The difference is significant. As an unpainted object, it is quite unappealing. The shape itself seems to lack definition. The painting makes the object quite a different one: the shape emerges as clearly defined, and the colouring gives the object a real life and attractiveness. I think the description "new and different goods" is an appropriate one, even though fundamentally the shape itself does not change. It is, in a bland sense, and remains a carved wooden item but the qualities which make it an attractive object emerge only after it is painted. Analogy is always a little dangerous, but I essay one, albeit not a perfect one: a painter's canvas may be imported, and although it does not change size, the canvas is substantially transformed by being painted. The carved wooden bird shape is, of course, not the equivalent of a canvas. It is already shaped. However, the dramatic change in appearance, including that the painting seems to add definition to the shape, has to my mind a not dissimilar transformation.
Case: 71 Paisley Street Footscray Pty Ltd v Vineyards Estate Pty Ltd [1995] FCA 635 (unreported, Olney J, 18 August 1995)
Outcome: approved
Mr Bova's submission that the dispute was confined to the issues identified in the affidavit as read at the hearing does not take into account the purpose of the requirement in s 459G(3) that the supporting affidavit not only be filed within 21 days of the demand but also that, within that same period, a copy be served on the party making the demand. As Olney J stated in 71 Paisley Street Footscray Pty Ltd v Vineyards Estate Pty Ltd [1995] FCA 635 at [10] , the "purpose of the affidavit contemplated by s 459G(3) is to tell the creditor why it is said that the demand should be set aside". It follows that, if the discrepancy between the affidavit as read at the hearing and the affidavit that, in its entirety, had been served on the defendant, is such as to put forward materially different bases for seeking to set aside the statutory demand, the question whether the requirements of s 459G(3) have actually been met must arise. 22 Another difficulty with the affidavit is that it does not distinguish between the defendant and the partnership. It indicates in paragraph 3 that the defendant company will be referred to as "Anar" and then proceeds to refer to dealings with "Anar" (for instance in paragraph 8) that took place before the defendant was incorporated. I can only assume that in such cases Dr Chisholm is referring to the partnership. 23 The dispute between the parties centres on the supply of a particular dye, known in the industry as Direct Blue 290. This dye is a discrete chemical compound which was developed by Ciba Specialty Chemicals in the 1970s. Ciba's patent over the compound expired in the late 1990s. In early 2003, the plaintiff negotiated with Mr Choksi with a view to sourcing a chemical copy of Direct Blue 290. In April of that year, "Anar" (presumably the partnership) sent a sample dye to the plaintiff. The sample was apparently labelled "Direct Blue 290". Accompanying the sample was a material safety data sheet which also identified the product as "Direct Blue 290". Dr Chisholm asked Mr Choksi to carry out stability work on the dye "to ensure the product was stable under Indonesian conditions".
Case: Advance Ship Design Pty Ltd v DJ Ryan t/as Davies Collison Cave (1995) 16 ACSR 129
Outcome: approved
The defendant correctly states that there is no evidence that any claim has actually been made by Pindo Delhi. In Advance Ship Design Pty Ltd v DJ Ryan t/as Davies Collison Cave (1995) 16 ACSR 129, Master McLaughlin of the Equity Division of the Supreme Court of New South Wales held at 135 that: The claim must be one which exists at the present time, and it must be one which, if the plaintiff is able to prove the factual matters alleged ..., would result in the plaintiff being presently entitled to the damages claimed.
Case: Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Outcome: cited
Although not established to the standard expected at final trial, it can reasonably be assumed, given the nature of this application, that the dye supplied by the defendant in early 2005 is the dye that generated problems from the middle of 2005. Given the difficulties that arose with this dye, I am thus satisfied that the plaintiff's claim to have an offsetting claim raises "a serious question to be tried"; Scanhill 47 FCR at 467. The threshold that the plaintiff must cross "is not a high one"; Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702 at 706. I am satisfied that the plaintiff has done more than simply assert a claim and some basis for it without more; Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 at 39.
Case: Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128
Outcome: followed
While an offsetting claim does not have to be for a liquidated amount ( Classic Ceramic Importers 13 ACSR 263), "only a claim which is capable of being quantified as an amount of money can qualify as an 'offsetting claim'"; Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128, at 135.
Case: Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263
Outcome: approved
In making this assessment, it is not appropriate to delve into the merits of the competing claims; Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] NSWSC 471 ; (2000) 34 ACSR 301. There is authority for the view that the amount of the offsetting claim is simply that amount claimed in good faith by the plaintiff, ambit though such a claim may be; Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717, per Young J at 722; see also Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263 at 270. 42 While an offsetting claim does not have to be for a liquidated amount ( Classic Ceramic Importers 13 ACSR 263), "only a claim which is capable of being quantified as an amount of money can qualify as an 'offsetting claim'"; Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128, at 135.
Case: Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] NSWSC 471 ; (2000) 34 ACSR 301
Outcome: followed
In making this assessment, it is not appropriate to delve into the merits of the competing claims; Edge Technology Pty Ltd v Lite-On Technology Corporation [2000] NSWSC 471 ; (2000) 34 ACSR 301. There is authority for the view that the amount of the offsetting claim is simply that amount claimed in good faith by the plaintiff, ambit though such a claim may be; Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717, per Young J at 722; see also Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263 at 270. 58 There is some discrepancy between the profit margin of 30 per cent claimed in Dr Chisholm's first affidavit and his evidence in cross-examination. Whilst the Court does not require evidence of a standard expected on a final claim in applications of this kind, contradictions in evidence can be fatal if they make the claim as a whole implausible; see Edge Technology [2000] NSWSC 471 ; 34 ACSR 301. In the circumstances of Dr Chisholm's unexpected cross-examination, I am not willing to draw such a conclusion. It is accepted that the amount claimed by the plaintiff may have "elements of uncertainty"; Elm Financial Services [2004] NSWSC 560 at [19] . 59 In Edge Technology [2000] NSWSC 471 ; 34 ACSR 301, a bare assertion of an amount for loss of profits without further evidence as to how that amount was calculated was held to be insufficient to ground a genuine offsetting claim in that amount; see Edge Technology at 316. In my view, the present case is distinguishable. Dr Chisholm has given oral evidence as to the different profit margins on products from different sources sold in Indonesia, and, as I have noted, has annexed to his second affidavit a print-out of a spreadsheet from the plaintiff's accounting software detailing sales and profits relating to Pindo Delhi. The Court thus has sufficient evidence to say that the claim is genuine, whilst not seeking to assess the merits of the claim. 60 Mr DeBuse argued that any loss in business suffered by the plaintiff would not have been caused by the presence of Direct Blue 218 in the dye manufactured by the defendant, but rather by the plaintiff's own delay in informing Pindo Delhi of its presence. Dr Chisholm has given evidence that the plaintiff was aware of the presence of Direct Blue 218 from July 2005, but that Pindo Delhi and IndoAsia only discovered this when informed by a Japanese buyer in January 2006. Whilst there may be some substance to the submission that the plaintiff's failure to warn its clients contributed to any subsequent loss of business, I cannot say that it is it is "implausible and extremely unlikely" that any loss resulted from the defendant's conduct; Edge Technology 34 ACSR at 315. Accordingly, I am not prepared to reject the claim on this basis. 61 In my view the plaintiff has a genuine claim against the defendant for USD333,000 for loss of business with the Sinar Mas Group.