mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
As a general rule a court should be reluctant to undertake an enquiry as to who was successful on particular issues for the purpose of determining whether there should be an apportionment of costs against the successful party: see Dr Martens v Figgins Holdings (No 2) [2000] FCA 602 at [54] where Goldberg J said: A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue. See also Cretazzo v Lombardi (1975) 13 SASR 4 at 16. 8 In the present case B &amp; D did not fail on all issues relating to the design. The design infringement issue did not take up a major part of the design case, still less of the total hearing. From a commercial aspect it was understandable that B &amp; D should pursue design infringement as well as the Standard and Innovation Patent infringements as they were all bound up with the one product. Also, the design infringement issue, turning as it did essentially on visual inspection, did not become the subject of very detailed expert evidence, although there was some. There was no witness whose evidence was confined to design infringement, the one issue on which GMCA succeeded. 9 All in all I think it is reasonable not to make any reduction of the general award in favour of B &amp; D. 10 B &amp; D submits that it should receive at an indemnity level an award of costs thrown away in relation to: &#8226; repeated changes in GMCA's case; &#8226; loss of the trial date in April 2007; and &#8226; failure to respond reasonably to notices to admit.
Case: Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993)
Outcome: cited
Some latitude needs to be allowed for the changing of a party's case as investigations reveal possible new arguments. But a line has to be drawn somewhere. Otherwise cases would never get to trial. When, as often happens today, and did so in the present case, there is no interlocutory injunction in place, an ultimately successful patentee may suffer loss which is difficult or impossible to quantify. In the present case B &amp; D claims that costs wasted or duplicated by reason of GMCA's fourth (19 December 2006) and fifth (18 April 2007) particulars of invalidity should be ordered on an indemnity basis. I agree. One of the established categories for which indemnity costs may be ordered is where a party has conducted its case so as to grossly prolong the litigation, thereby causing (the other party) to incur costs far beyond what they could reasonably have expected to incur in litigation of the genuine issues. Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993) at 5, cited with approval in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233.
Case: Ungar v Sugg (1899) 9 RPC 113
Outcome: cited
These issues need to be seen in the context of the tortuous history of this case. That progress, or lack thereof, brings to mind the statement of Lord Esher MR in Ungar v Sugg (1899) 9 RPC 113 at 117 recently cited by Jacob LJ in Nichia Corporation v Argos Ltd [2007] EWCA Civ 741 at [1] : A man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law: it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief. 12 Jacob LJ, England's pre-eminent patent judge, continued: [2] What causes cost is time: time spent by lawyers, experts and the parties themselves. Lawyers' and experts' time is normally measured and costed. Because they are highly skilled, lawyers' and experts' time is expensive. Time spent by the parties themselves is generally irrecoverable. [3] It follows as night follows day that every issue or topic in a patent action which causes significant expenditure of time will contribute to the overall cost. 13 Those observations apply equally to patent litigation in this country. Some additional points can be made. In most commercial litigation the relevant events, the creation of documents, the conversations, the payment or non-payment of money etc, have already occurred by the time the litigation commences. With patent litigation, however, much of the critical evidence is from experts and only comes into existence after the proceedings have been launched and those experts have been located and retained and have prepared their evidence. All this takes time, and since both sides face the same kind of problems there is a natural tendency for mutual accommodation: "We understand you need an extra three months to get Professor X's evidence, just give us an extra three months after that to get Dr Y's".
Case: Welcome Real-Time SA v Catuity Inc (No 2) [2001] FCA 785
Outcome: cited
It is proper to have an injunction not only referring to particular products found to have infringed, but also in respect of any other infringing products which the infringer might produce or sell: see Welcome Real-Time SA v Catuity Inc (No 2) [2001] FCA 785. 6 I held that B &amp; D's design was valid but not infringed. Thus each side had some success in relating to design issues. GMCA says that it should recover its costs on those issues or at least on the infringement issue. B &amp; D says there should be no reduction of a general order as to costs in relation to design issues or at worst there should be no order as to costs.
Case: Reid v State of South Australia [2007] FCA 1479
Outcome: cited
I recently have had the need to outline the principles applicable to a matter such as this: see Reid v State of South Australia [2007] FCA 1479 at [23] - [30] . The following, with some addition, is drawn from what I there said. 16 An application for a determination of native title under s 13(1)(a) of the Native Title Act can be brought in accordance with s 61(1) by (for present purposes): "A person or persons authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; ... Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group." (Original emphasis)
Case: Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: cited
It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774.
Case: Colbung v State of Western Australia [2003] FCA 774 
Outcome: cited
It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774.
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] . 23 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do no more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."
Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115
Outcome: cited
The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 at [60] .
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 
Outcome: cited
Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77.
Case: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Outcome: cited
The vices in the membership of the claim group carry over into the alleged authorisation of Mr Kite to bring the claim itself. I need say no more about this, other than to observe that this particular claim group is itself probably best described as self-identifying and self-authorising and is objectionable for those reasons: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] . The process of authorisation described in the affidavit accompanying the Form 1 suggests as much. 44 The State also raised subsidiary issues of non-compliance with procedural requirements imposed by s 61A and s 62. Given my conclusion as to the fate of the application itself, it is unnecessary that I deal with these. 45 I will order that the native title determination application (SAD 130 of 2007) be struck out under s 84C of the Native Title Act . I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 2 November 2007 Counsel for the Applicant: Mr R Bower Solicitor for the Applicant: Corser &amp; Corser Counsel for the Respondent: Mr S McCall Solicitor for the Respondent: Crown Solicitor for the State of SA Date of Hearing: 15 October 2007 Date of Judgment: 2 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1662.html
Case: APN News &amp; Media Limited (2007) 25 ACLC 784
Outcome: referred to
Each Scheme Participant is deemed to have warranted that all of its Shares and Units to be transferred to Morgan Stanley Bidco will at the date of transfer be "fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind...", and that the Scheme Participant has full power and capacity to sell and transfer them: cl 7.3. I have no difficulty with a provision of that kind: see APN News &amp; Media Limited (2007) 25 ACLC 784 ( APN ) at [57] [63]. 31 The Implementation Agreement contains "no shop" and break fee provisions. I discussed such provisions in APN 25 ACLC 784 at [25] [35] and [36] [55] respectively. 32 The affidavit of Jonathan Peter Callaghan, the Group General Counsel of the Investa Property Group, sworn 17 July 2007 deals at paras 23 26 with such provisions in the present case. The "no shop" provision (cl 14 of the Implementation Agreement) is to the effect that during a "No Shop Period" competing takeover proposals are not to be sought, and that if any are received, Morgan Stanley Bidco is to be given an opportunity to match them. 33 The break fee provision (cl 15 of the Implementation Agreement) is to the general effect that Investa will pay to Morgan Stanley Bidco a break fee of $20 million if, within nine months of the date of the Implementation Agreement, certain events occur. In general terms, these are that the proposed acquisition by Morgan Stanley Bidco fails for certain reasons, such as the acceptance of a competing takeover proposal. The break fee is not payable if the Investa Shareholders simply decide not to accept Morgan Stanley Bidco's offer. 34 Mr Callaghan's affidavit shows that the "no shop" and break fee provisions were agreed to by Investa following ordinary arm's length commercial negotiations between Investa and Morgan Stanley Bidco that were conducted over a period of two months, during which the parties were separately advised and represented by external legal advisers, and (in the case of Investa) by external financial advisers, with extensive experience of transactions of the present kind. Mr Callaghan states that Investa received legal advice on the operation of both provisions, and that Investa had regard to the guidelines set out in the Takeovers Panel Guidance Note 7 when it was negotiating and agreeing to them. 35 The amount of the break fee is $20 million which represents 0.49% of the equity value of the Securities as at 30 May 2007, and 0.43% of the total consideration offered by Morgan Stanley Bidco, including the eight cents per Security dividend or distribution to be paid to Security holders on 22 August 2007. Clearly, the amount of the break fee is well below the 1% of equity value referred to (at [7.18]) in the Takeovers Panel's Guidance Note 7: Lock-up Devices (2 nd Issue, 2005).
Case: Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143
Outcome: cited
A "share" is a legal chose in action that is constituted by a bundle of contractual rights and obligations and represents a person's interest in a company, and which, subject to the company's constitution and possibly other constraints, is transferable, transmissible and capable of devolution by will and by operation of law: see the Act s 1070A , and Borland's Trustee v Steel Bros &amp; Co Ltd [1901] 1 Ch 279 at 288; Commissioners of Inland Revenue v Crossman [1937] AC 26 at 66; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 157. Under general law principles, a buyer of a share enjoys priority over the holder of an earlier equitable interest because of the doctrine of bona fide purchaser of the legal estate without notice: see Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane's Equity Doctrines and Remedies (Butterworths LexisNexis, 2002) at [8-230] [8-300].
Case: Borland's Trustee v Steel Bros &amp; Co Ltd [1901] 1 Ch 279
Outcome: cited
A "share" is a legal chose in action that is constituted by a bundle of contractual rights and obligations and represents a person's interest in a company, and which, subject to the company's constitution and possibly other constraints, is transferable, transmissible and capable of devolution by will and by operation of law: see the Act s 1070A , and Borland's Trustee v Steel Bros &amp; Co Ltd [1901] 1 Ch 279 at 288; Commissioners of Inland Revenue v Crossman [1937] AC 26 at 66; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 157. Under general law principles, a buyer of a share enjoys priority over the holder of an earlier equitable interest because of the doctrine of bona fide purchaser of the legal estate without notice: see Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane's Equity Doctrines and Remedies (Butterworths LexisNexis, 2002) at [8-230] [8-300].
Case: Commissioners of Inland Revenue v Crossman [1937] AC 26
Outcome: cited
A "share" is a legal chose in action that is constituted by a bundle of contractual rights and obligations and represents a person's interest in a company, and which, subject to the company's constitution and possibly other constraints, is transferable, transmissible and capable of devolution by will and by operation of law: see the Act s 1070A , and Borland's Trustee v Steel Bros &amp; Co Ltd [1901] 1 Ch 279 at 288; Commissioners of Inland Revenue v Crossman [1937] AC 26 at 66; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 157. Under general law principles, a buyer of a share enjoys priority over the holder of an earlier equitable interest because of the doctrine of bona fide purchaser of the legal estate without notice: see Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane's Equity Doctrines and Remedies (Butterworths LexisNexis, 2002) at [8-230] [8-300].
Case: Re Kaz Group Ltd [2004] FCA 738
Outcome: cited
Morgan Stanley Bidco has executed a Deed Poll by which it has covenanted in favour of the Scheme Participants (the holders of Securities other than Excluded Securities) to carry out the obligations to be performed by it under the Share Scheme and the Unit Scheme. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) .
Case: Re SFE Corporation Ltd (2006) 59 ACSR 82
Outcome: cited
Morgan Stanley Bidco has executed a Deed Poll by which it has covenanted in favour of the Scheme Participants (the holders of Securities other than Excluded Securities) to carry out the obligations to be performed by it under the Share Scheme and the Unit Scheme. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) . 19 In SFE 59 ACSR 82, Gyles J suggested that a scheme might provide for payment by the acquiring company to a trustee prior to the vesting of title to the shares in the acquiring company, to be held by the trustee for payment to the shareholders immediately following the vesting. In my experience, this procedure is now commonly followed, as it has been in the present case. 20 Accordingly, under cll 4.2 and 4.4 of the Share Scheme, on or before 12.00 noon on the Implementation Date, Morgan Stanley Bidco is to pay the aggregate Scheme consideration in cleared funds into an account in the name of Investa, to be held by Investa on trust for the Scheme Participants (except that any interest on the amount is to be for the account of Morgan Stanley Bidco) for the purpose of its being paid over to them by dispatch not later than the Implementation Date. Also by 12.00 noon on the Implementation Date Morgan Stanley Bidco is to provide a certificate signed by a director confirming that Morgan Stanley Bidco has made that payment. After 12.00 noon on the same date, and subject to receipt by Investa of that certificate, the Shares, other than the Excluded Shares (if any), together with the Units that are stapled to the Shares, are to be transferred to Morgan Stanley Bidco.
Case: Re Tempo Services Ltd (2005) 53 ACSR 526
Outcome: cited
Morgan Stanley Bidco has executed a Deed Poll by which it has covenanted in favour of the Scheme Participants (the holders of Securities other than Excluded Securities) to carry out the obligations to be performed by it under the Share Scheme and the Unit Scheme. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) .