mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 
Outcome: cited
As I have already found, copyright in the works in suit rests with the applicants. Dallas Gibson and RMC uploaded the works in suit onto the Icarus College website as part of their own course materials for their own students. These infringing copies are deemed, by virtue of s 116 of the Copyright Act , to be the property of the copyright owners, being the Boyapatis: see A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 34 IPR 332. A notice on the Icarus College website stated that it was the owner of the copyright in the materials published on the website. When the respondents made the works in suit available to their students via the Icarus College website, they treated the infringing copies as their own and acted in a manner inconsistent with the applicants' rights as deemed owners and, accordingly, converted them: see Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1939] AC 178 at 189 per Lord Russell of Killowen and 202 per Lord Porter..
Case: Birdseye v Sheahan (2002) 196 ALR 598 
Outcome: cited
The applicants contended, and I accept, that Dallas Gibson's bankruptcy created a fundamental impediment to this claim. This was because Dallas Gibson's bankruptcy commenced on 18 October 2000 and ended on 19 October 2003: see Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), s 149(4). It is not entirely clear whether, on Dallas Gibson's version of events, he claimed to have acquired copyright in the cross-claim works in suit before or after his bankruptcy in October 2000. As it happens, nothing particularly turns on this. Section 58(1)(a) of the Bankruptcy Act vests the property of the bankrupt in the trustee when he or she becomes a bankrupt. Section 58(1)(b) vests after-acquired property (as defined in s 58(6)) of the bankrupt after the date of bankruptcy in the trustee as soon as the acquisition or devolution occurs. Section 58(6) provides that, in this context, "after-acquired property" in relation to a bankrupt means "property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt". Section 116 specifies property that is divisible amongst the creditors of the bankrupt. The term "property" for the purposes of ss 58 and 116 is defined broadly in s 5 of the Bankruptcy Act to mean "real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property". This definition encompasses copyright, which s 196(1) of the Copyright Act recognises as a form of personal property: see also Birdseye v Sheahan (2002) 196 ALR 598 at 607 [52] per Carr J. Copyright does not fall within one of the classes of enumerated exceptions in s 116 of the Bankruptcy Act and the Bankruptcy Regulations 1966 (Cth). Accordingly, copyright in the cross-claim works in suit (if it existed) vested in the trustee at the time Dallas Gibson became a bankrupt or as after-acquired property. As at September 2003, Dallas Gibson was incapable of assigning the proprietary interest in the cross-claim works in suit to RMC. Notwithstanding that Dallas Gibson sought to make an assignment of copyright to RMC at this date, RMC in fact acquired nothing. It follows that the purported assignment of the copyright in September 2003 from Dallas Gibson, whilst a bankrupt, was ineffective.
Case: Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306
Outcome: referred to
It seems probable (and it was not suggested otherwise) that Dallas Gibson's bankruptcy ended on 19 October 2003 pursuant to s 149(4) of the Bankruptcy Act , as a consequence of automatic discharge consequent on the expiration of three years from the date he filed his statement of affairs. Section 153 sets out the effect of an automatic discharge. This provision does not, however, have the effect of revesting in the bankrupt the property vested in the trustee: see Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 320 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789 at 795-796 per Kirby P, Clarke and Meagher JJA agreeing; and Gosden v Dixon (1992) 107 ALR 329 at 331 per McLelland J. There was no evidence that the trustee in bankruptcy had assigned or transferred the copyright to Dallas Gibson since the discharge of his bankruptcy. Assuming that his discharge was by force of s 149(4) , the copyright continued to vest in the trustee in bankruptcy, and neither Dallas Gibson nor RMC is entitled to bring this part of the cross-claim.
Case: Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789
Outcome: cited
It seems probable (and it was not suggested otherwise) that Dallas Gibson's bankruptcy ended on 19 October 2003 pursuant to s 149(4) of the Bankruptcy Act , as a consequence of automatic discharge consequent on the expiration of three years from the date he filed his statement of affairs. Section 153 sets out the effect of an automatic discharge. This provision does not, however, have the effect of revesting in the bankrupt the property vested in the trustee: see Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 320 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789 at 795-796 per Kirby P, Clarke and Meagher JJA agreeing; and Gosden v Dixon (1992) 107 ALR 329 at 331 per McLelland J. There was no evidence that the trustee in bankruptcy had assigned or transferred the copyright to Dallas Gibson since the discharge of his bankruptcy. Assuming that his discharge was by force of s 149(4) , the copyright continued to vest in the trustee in bankruptcy, and neither Dallas Gibson nor RMC is entitled to bring this part of the cross-claim.
Case: Gosden v Dixon (1992) 107 ALR 329 
Outcome: cited
It seems probable (and it was not suggested otherwise) that Dallas Gibson's bankruptcy ended on 19 October 2003 pursuant to s 149(4) of the Bankruptcy Act , as a consequence of automatic discharge consequent on the expiration of three years from the date he filed his statement of affairs. Section 153 sets out the effect of an automatic discharge. This provision does not, however, have the effect of revesting in the bankrupt the property vested in the trustee: see Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306 at 320 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Daemar v Industrial Commission of NSW (No 2) (1990) 99 ALR 789 at 795-796 per Kirby P, Clarke and Meagher JJA agreeing; and Gosden v Dixon (1992) 107 ALR 329 at 331 per McLelland J. There was no evidence that the trustee in bankruptcy had assigned or transferred the copyright to Dallas Gibson since the discharge of his bankruptcy. Assuming that his discharge was by force of s 149(4) , the copyright continued to vest in the trustee in bankruptcy, and neither Dallas Gibson nor RMC is entitled to bring this part of the cross-claim.
Case: Medical Benefits Fund of Australia Ltd v Cassidy [2002] FCA 1097 ; (2003) 205 ALR 402 
Outcome: referred to
In any event, in cross-examination, Ann Boyapati stated, and I accept, that she was not responsible for organising sponsorship or for the posting of the logos of third party organisations on the MedEntry website. She had no knowledge of any relevant matter: see Medical Benefits Fund of Australia Ltd v Cassidy [2002] FCA 1097 ; (2003) 205 ALR 402. Her father corroborated her evidence in this regard, saying that these matters were his responsibility. Accordingly, the claim made against Ann Boyapati under s 75B of the TPA that she was knowingly concerned in, or party to, contravening conduct of MedEntry or Anzie in connection with the representations as to third party endorsement must fail. 137 When MedEntry (and not Anzie) owned the website, Ray Boyapati was named as the contact person. He gave instructions for the work done on the site and posted the relevant logos on the MedEntry website. His evidence was, and I accept, that his father sent him the material and he put it up on the site. He said that he was aware of the posted material and that he had assumed the relevant organisations had given their consent, without further inquiry. I accept that he had no knowledge of any relevant matter. The claim made against him under s 75B of the TPA must fail. 138 For the reasons already stated, the claim made against Edward Boyapati must also fail. Further, as I have said, I accept that, if there had been any contravention of the TPA, this would have been as a result of an inadvertent mistake on the part of Edward Boyapati. There was no evidence that he knew of any matter that would have enabled any representation to be characterised as false. Accordingly, the claim made against him under s 75B of the TPA must fail.
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 
Outcome: referred to
As Stephen J said (Jacobs J agreeing) in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 229-230: There is a price to be paid for the advantages flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public. In cases of passing off, where it is the wrongful appropriation of the reputation of another or that of his goods is in question, a plaintiff which uses descriptive words in its trade name will find that quite small differences in a competitor's trade name will render the latter immune from action ... The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe. If this be so in the case of passing off actions the case of s 52(1) , concerned only with the interests of third parties, is a fortiori. To allow this section of the [TPA] to be used as an instrument for the creation of any monopoly in descriptive names would be to mock the manifest intent of the legislation. Given that a name is no more than merely descriptive of a particular type of business, its use by others who carry on the same type of business does not deceive or mislead as to the nature of the business described ... Evidence of confusion in the minds of members of the public is not evidence that the use of the Hornsby Centre's name is itself misleading or deceptive but rather that its intrusion into the field originally occupied by the Sydney Centre has, naturally enough, caused a degree of confusion in the public mind. This is not, however, anything at which s 52(1) is directed. Since the cross-claimants' use of the name "Medical Entrance" is essentially descriptive, they bore a heavy onus to show that the name had gained a secondary meaning referring specifically to the goods and services of their business. 143 The evidence established that neither of the cross-claimants had traded under the name "Medical Entrance" alone. The evidence showed that Dallas Gibson (from 2000) and RMC (from September 2003) gave various names to their business and business products, including: (1) UMAT Superprep Courses; (2) Dallas Tertiary Prep Skills; (3) Dallas Medical Entrance; (4) Dallas Super Prep (according to Dallas Gibson, prior to 2004); (5) Tertiary Prep Skills (according to Dallas, this was an "early" usage); (6) Icarus College (from around March 2004); and (7) Dallas SuperKeenEye. There was little other evidence relating to the reputation of the cross-claimants in the use of the name "Medical Entrance": see also [144]-[145] below.
Case: British Telecommunications PLC v One In A Million Ltd (1998) 42 IPR 289 
Outcome: cited
Since the cross-claimants used the words "Medical Entrance" descriptively and did not, in any event, trade under these words alone, I reject the proposition that the words "Medical Entrance" had become relevantly associated with them by the end of 2003. When the cross-respondents began their business in early 2004, the cross-claimants did not have a sufficient reputation in the name "Medical Entrance" to support their passing off claim. The fact that "Medical Entrance" was used as the domain name for their website did not establish that they had any reputation in the name. This is not a case at all like British Telecommunications PLC v One In A Million Ltd (1998) 42 IPR 289 or CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 ; (2003) 128 FCR 408 , to both of which the cross-claimants referred. Further, there was in the circumstances no basis for the cross-claimants' assertion that, by their adoption of the name "MedEntry", the cross-respondents misrepresented that their business was the same as, or relevantly associated with, the cross-claimants' business. Nor was there any sufficient basis for the claim that the cross-respondents misrepresented that the cross-claimants had sponsored or approved MedEntry and Anzie or their goods and services in breach of ss 52 , 53 (c) or 53 (d) of the TPA.
Case: CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 ; (2003) 128 FCR 408 
Outcome: cited
Since the cross-claimants used the words "Medical Entrance" descriptively and did not, in any event, trade under these words alone, I reject the proposition that the words "Medical Entrance" had become relevantly associated with them by the end of 2003. When the cross-respondents began their business in early 2004, the cross-claimants did not have a sufficient reputation in the name "Medical Entrance" to support their passing off claim. The fact that "Medical Entrance" was used as the domain name for their website did not establish that they had any reputation in the name. This is not a case at all like British Telecommunications PLC v One In A Million Ltd (1998) 42 IPR 289 or CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 ; (2003) 128 FCR 408 , to both of which the cross-claimants referred. Further, there was in the circumstances no basis for the cross-claimants' assertion that, by their adoption of the name "MedEntry", the cross-respondents misrepresented that their business was the same as, or relevantly associated with, the cross-claimants' business. Nor was there any sufficient basis for the claim that the cross-respondents misrepresented that the cross-claimants had sponsored or approved MedEntry and Anzie or their goods and services in breach of ss 52 , 53 (c) or 53 (d) of the TPA.
Case: Boyapati v Rockefeller Management Corporation [2006] FCA 897 
Outcome: cited
The Court has associated jurisdiction with respect to the defamation cross-claim: see Boyapati v Rockefeller Management Corporation [2006] FCA 897. The challenged publications were made across the Internet and, therefore, throughout Australia: see Dow Jones &amp; Co Inc v Gutnick (2002) 210 CLR 575 at 606-607 per Gleeson CJ, McHugh, Gummow and Hayne JJ and 610 per Gaudron J. The Defamation Act 2005 , which came into force for all Australian States on 1 January 2006, does not apply to this proceeding. (In the Northern Territory, the legislation came into force on 26 April 2006. In the Australian Capital Territory, the uniform defamation laws are contained in Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) by virtue of the commencement of the Civil Law (Wrongs) Amendment Act 2006 (ACT) on 22 February 2006.)
Case: Dow Jones &amp; Co Inc v Gutnick (2002) 210 CLR 575 
Outcome: referred to
The Court has associated jurisdiction with respect to the defamation cross-claim: see Boyapati v Rockefeller Management Corporation [2006] FCA 897. The challenged publications were made across the Internet and, therefore, throughout Australia: see Dow Jones &amp; Co Inc v Gutnick (2002) 210 CLR 575 at 606-607 per Gleeson CJ, McHugh, Gummow and Hayne JJ and 610 per Gaudron J. The Defamation Act 2005 , which came into force for all Australian States on 1 January 2006, does not apply to this proceeding. (In the Northern Territory, the legislation came into force on 26 April 2006. In the Australian Capital Territory, the uniform defamation laws are contained in Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) by virtue of the commencement of the Civil Law (Wrongs) Amendment Act 2006 (ACT) on 22 February 2006.)
Case: Li v The Herald &amp; Weekly Times Pty Ltd [2007] VSC 109 
Outcome: applied
At common law, the cross-claimants have the burden of proving on the balance of probabilities that: (a) the words were published of and concerning them; (b) the words were in a permanent form; (c) the words were published to a third person; (d) the words were published by the named persons as alleged; and (e) the words were defamatory of them. See Li v The Herald &amp; Weekly Times Pty Ltd [2007] VSC 109 per Gillard J. The cross-claimants are entitled to recover damages if they establish these matters. Damages are presumed, and they are not required to prove actual damage. They have, however, also pleaded economic loss. This must be proved. 156 Dallas Gibson may of course bring an action for defamation. In all jurisdictions other than New South Wales, a trading corporation such as RMC may sue for defamation in so far as the imputations attack its commercial reputation and can generally be shown to have caused some financial harm: see RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths Australia, 3 rd ed, 2004) ("Balkin and Davis") at p 563-564. Section 8A of the Defamation Act 1974 (NSW) denied a cause of action in defamation to a corporation other than one that employed less than 10 employees and had no subsidiaries.
Case: Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 
Outcome: referred to
Whether or not words are defamatory is a question of fact. This question of fact in turn depends on (1) what the words mean; and (2) whether the imputations are defamatory. The intention of the alleged defamer is irrelevant to the question of liability. In Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 at 505-506, Brennan J, for the Court, said: Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees Lord Selborne's reasonable men ... or Lord Atkin's right thinking members of society generally ... or Lord Reid's ordinary men not avid for scandal ... would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally. Consideration must be given to what the ordinary reasonable reader would think when reading the publication over the Internet. This is in part a matter of impression. The ordinary reasonable reader relies on his or her own knowledge and experience of human affairs: see Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301 per Mason J.
Case: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 
Outcome: referred to
Whether or not words are defamatory is a question of fact. This question of fact in turn depends on (1) what the words mean; and (2) whether the imputations are defamatory. The intention of the alleged defamer is irrelevant to the question of liability. In Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 at 505-506, Brennan J, for the Court, said: Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees Lord Selborne's reasonable men ... or Lord Atkin's right thinking members of society generally ... or Lord Reid's ordinary men not avid for scandal ... would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally. Consideration must be given to what the ordinary reasonable reader would think when reading the publication over the Internet. This is in part a matter of impression. The ordinary reasonable reader relies on his or her own knowledge and experience of human affairs: see Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301 per Mason J.
Case: Sim v Stretch [1936] 2 All ER 1237 
Outcome: applied
Whether or not words are defamatory depends on whether the words lower the defamed in the estimation of right-thinking people generally. In Sim v Stretch [1936] 2 All ER 1237 at 1240, Lord Atkin stated the well-accepted test in the following passage: The question, then, is whether the words in their ordinary signification are capable of being defamatory. Judges and textbook writers alike have found difficulty in defining with precision the word 'defamatory'. The conventional phrase exposing the plaintiff to hatred, ridicule and contempt is probably too narrow. The question is complicated by having to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? 159 In considering whether words are defamatory, the context in which the words are used must be considered. The whole publication must be considered. The circumstances of the publication, the words used and the context may all have an effect on the imputation conveyed to the reader. Balkin and Davis stated at p 558: Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made. The words are taken to have their ordinary and natural meaning, which is that meaning that is reasonably understood by the ordinary reasonable reader using his or her knowledge and experience of human affairs. 160 A person need not be referred to by name to be defamed. It is sufficient if some people, proved to have knowledge of extrinsic circumstances, might reasonably believe that the statement referred to him or her: see Balkin and Davis at 564-565. They added at 565: Identification of the plaintiff as the person referred to may come from others' knowledge of extrinsic facts. Thus, a statement that an (unnamed) business college has misled the public as to the efficacy of its courses will be defamatory on proof that some readers thereof understood the statement to refer to a particular college. (References omitted.) An action for defamation will lie only where the matter is made known to someone other than the person claiming to be defamed.