mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321
Outcome: applied
The word 'label' as used in par (a) of the definition of 'accessory' in s 10(1) should be given a meaning distinct from that provided by other paragraphs of the definition, such as the 'written instruction, warranty or other information provided with the article' referred to in par (d): ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. 'Other information' referred to in par (d) would include the descriptions on the navy-blue and silver embroidered internal labels on the articles in Exhibits A to P (including the scarf, where those labels appear on its exterior surface). Likewise par (c) of that definition would catch the use of the copyright in the painting the subject of the decision in Bailey 4 NSWLR 701.
Case: Cow ( PB) &amp; Co Ltd v Cannon Rubber Manufactures Ltd [1959] RPC 240
Outcome: referred to
Polo/Lauren argued that, in essence, the embroidery of the polo player logo was part of a pattern or ornamentation on the surface of the garments. It contended that the embroidery was not an essential feature or characteristic of the appearance of the garments amounting to a visual feature of shape or configuration in the sense explained in cases such as Cow ( PB) &amp; Co Ltd v Cannon Rubber Manufactures Ltd [1959] RPC 240 at 244 per Lloyd-Jacob J. There, Lloyd-Jacob J said that a design of a hot-water bottle which had a ribbed appearance had to be '... considered on the footing that the particular ribbed appearance which it provides in articles to which it is applied is a characteristic feature of it'. In contrast, Polo/Lauren suggested that the subtlety of the embroidery as used on the various garments retained the essential two-dimensional character of the visual appearance of the polo player logo, so that it was to be regarded as a part of a pattern or ornamentation of the garment, and thus outside the definition of 'corresponding design'. 81 Embroidery, of its nature, affects the shape of the fabric on to which the stitching is applied. On each of the 15 exhibits (A to P) it is immediately apparent that the polo player logo is embroidered, not printed, and that the fabric surrounding the embroidery is subtly, but noticeably, differently woven to the distinct area embroidered. 82 One picture in the polo knit shirt catalogue showed six differently coloured polo knit shirts. They were in a pile folded one top of the other. Each polo knit shirt had an embroidered, but differently coloured, polo player logo visible on it. The embroidery is noticeably raised above the surface of the rest of each of those garments as depicted in the picture. The catalogue had stated: 'For Ralph/Lauren, there was no better way to celebrate the spirit of the original Polo and the heritage of this gentlemen's sport than with the signature Polo Player logo fashioned any time from no less than 784 stitches.'
Case: Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV [1977] HCA 52 ; (1977) 138 CLR 534
Outcome: referred to
Each of the articles imported by Ziliani was genuine, rather than counterfeit. It had been manufactured in the country of manufacture with the licence of the owner of the copyright in the polo player logo and then was lawfully imported into or displayed for sale in the United States of America where it was sold to Ziliani Holdings. The question here is whether the sales to and purchases by Ziliani Holdings in the United States of America entitled it to engage in 'parallel importing' of those goods into Australia: ie importing them without the licence of Polo/Lauren as the Australian licensee of the polo player logo. It is common ground that in the absence of a licence from Polo/Lauren and a defence under the Act, Ziliani would infringe any copyright in the polo player logo by importing the goods here or then trading with them: Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV [1977] HCA 52 ; (1977) 138 CLR 534. 6 Polo/Lauren claimed that Ziliani has infringed its copyright in the polo player logo here on two bases when it appeared embroidered on an article. 7 First, Polo/Lauren argued that Ziliani, from the time of their first act of importation, infringed its copyright in breach of s 37 of the Copyright Act by importing into Australia without Polo/Lauren's licence or consent each article of clothing on which the polo player logo was embroidered for the purpose of selling it by retail. Alternatively, it argued that, at least since the time Polo/Lauren or its predecessor made known to Ziliani its claim of infringement of its copyright in June 2006, Ziliani continued their importations and display for sale with knowledge of the breach of copyright. Ziliani accepted that if their defences failed they were liable on that latter basis.
Case: Wrangler Apparel Corp v Classic Boots Australia Pty Ltd (1997) 38 IPR 19
Outcome: referred to
Polo/Lauren argued that the visual features of the polo player logo cannot be described as features of 'shape or configuration' within the meaning of s 74. It argued that the polo player logo is basically two-dimensional and has an aesthetic, and not a functional, or utilitarian, purpose. Polo/Lauren contended that the polo player logo should properly be regarded as possessing features of pattern or ornamentation, referring to what Lehane J had said in Wrangler Apparel Corp v Classic Boots Australia Pty Ltd (1997) 38 IPR 19 at 25. 76 However, there his Honour made an obiter observation that 'W' shaped stitching on jeans was capable of being (but did not have to be) regarded as a feature of pattern or ornamentation, within the meaning of the definition in s 4 of the Designs Act 1906 (Cth) . Equally, here, there is no dispute about the capacity of the polo player logo to fall within one or other of the characterisations 'shape or configuration' or 'feature of pattern or ornamentation'. The real issue is which is the proper characterisation.
Case: M211 v Refugee Review Tribunal &amp; Anor [2004] FCAFC 293 ; (2004) 212 ALR 520
Outcome: considered
I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour. But if I am wrong, then, with respect, I cannot agree with it. The Minister submitted that a Full Federal Court approved Goldberg J's approach in M211 of 2003 v Refugee Review Tribunal &amp; Anor [2004] FCAFC 293 ; (2004) 212 ALR 520 at [16] [24] and cited other cases where this Court has held that a request under s 417 of the Act indicates acceptance of the Tribunal's decision and does not provide an adequate explanation for delay (at [11] of his submissions). Although the Full Court did not expressly endorse the observation cited above in Daniel , it concluded at [36]: 'Although the primary judge did not dismiss the application for prohibition on the ground of the appellant's lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.'
Case: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220
Outcome: cited
The second additional ground of appeal asserts that the Tribunal failed to apply the correct test in determining whether the applicants had a well-founded fear of persecution. The applicants submitted that the Tribunal assessed their evidence on the basis of a 'balance of probabilities' test and failed to ask itself 'what if I am wrong?' as per Minister for Immigration &amp; Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220. The Minister contended that nothing in the Tribunal's decision suggests that it misunderstood its task of determining whether the applicants had a well-founded fear of persecution for a Convention reason. The applicants did not identify any aspect of the Tribunal's decision that supports this claim in their outline of submissions. In these circumstances, I agree with the Minister's submission and this ground must also fail. 32 In considering whether to exercise my discretion to grant the extension of time that is being sought, in addition to my earlier consideration of the s 417 application at [21], I find it impossible to find any error, let alone jurisdictional error, in the learned Federal Magistrate's decision or that the applicants have any prospects of success on appeal. 33 It is for these reasons that I have come to the conclusion that I should not exercise my discretion to grant an extension of time to file and serve a notice of appeal; even if such an extension were granted, the applicants would have no reasonable prospects of success on appeal.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
The Federal Magistrate also found that the Tribunal did assess the objective basis of the applicants' fear of the specific assailants in a location other than the land at Nadi. The applicants had indicated that they could not return to their farm at Nadi since the lease had expired. His Honour held that the Tribunal did not make a relocation finding under the principle in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 but an assessment of fear based on a changed fact situation (at [54]). 13 On 17 November 2005, Scarlett FM dismissed the application in respect of the first, second and fourth applicants and dismissed the application in respect of the third applicant pursuant to s 48A of the Act. 14 On 29 April 2008, the applicants filed an application for an extension of time to file and serve a notice of appeal from the orders of Scarlett FM. In an affidavit filed and sworn 29 April 2008, the first applicant explained that the reason for the delay was that the applicants had sought Ministerial intervention on humanitarian grounds under s 417 of the Act in the intervening period. The applicants received notification of the final outcome of their s 417 application from the Minister by letter dated 2 April 2008. A draft notice of appeal was annexed to the affidavit and contains four grounds of appeal. These grounds of appeal assert that the learned Federal Magistrate had erred in failing to find jurisdictional errors in the Tribunal's decision.
Case: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
The first ground of appeal asserts that the Tribunal erred in failing to consider whether the second, third and fourth applicants, had a well-founded fear of persecution by reason of their membership of a particular social group comprising 'Indo-Fijian (young) females'. The Minister submitted that the sole basis on which the applicants say the Tribunal was required to consider this possibility was that the first applicant had told the Tribunal he did not want to return to Fiji because his 'wife and daughters might be the victims of violence' (at 5 of the Tribunal's reasons). The Minister contended that the context in which this statement appears does not support the applicant's claims that they advanced the argument to the Tribunal that 'Indo-Fijian (young) females' comprised a particular social group in Fiji. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 , Gleeson CJ stated at [1]: ' ... this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.' 24 In these circumstances, this ground cannot be sustained. 25 The second ground of appeal asserts that the Tribunal erred in failing to consider an integer of the claims, namely, whether the applicants had a well-founded fear of persecution by reason of the first applicant's support for the Fiji Labour Party at the time of the general election. The first applicant argued in his submissions that the Tribunal addressed the wrong issue in stating that 'I am satisfied from the independent evidence that the party is unlikely to achieve power again in the reasonably foreseeable future' at 17. However, the Tribunal went on to find in the same paragraph that: ' ... there is also no evidence in the U.S. State Department report for 2003 (2004) or any of the other sources cited above that people supported it in the past, or who support it now, are being subjected to any serious discrimination or harm, either at a societal level or by agents of the state.'
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
The third ground of appeal asserts that the Tribunal breached the requirements of s 424A of the Act. The section requires that, subject to certain exceptions, the Tribunal must give an applicant in writing, clear particulars of information which it considers would be the reason, or a part of the reason, for affirming a decision that is under review, and invite the applicant to comment on that information. The information that the applicants claim the Tribunal was required to give them under s 424A is particularised in the draft notice of appeal 'as discrimination against Indo-Fijians' through affirmative action programs for other ethnic groups. The Minister submitted that this is not 'information' that attracts an obligation under s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] . The Tribunal based its findings in relation to affirmative action on the U.S. State Department report for 2004 (within the exception of s 424(3)(a)) ; the evidence given by the applicants to the Tribunal (within the exception of s 424(3)(b)) ; and the insufficient evidence that the applicants might be targeted for serious harm by reason of their race in the reasonably foreseeable future (not 'information' within the meaning of s 424A). In these circumstances, this ground cannot be sustained. 28 The fourth ground of appeal asserts that the Tribunal failed to consider whether they had a well-founded fear of persecution by reason of the first applicant's provision of his truck to the Fiji Labour Party, as opposed to his party membership. The Minister submitted that the applicants did not articulate any claim that the first applicant's provision of his truck to the Fiji Labour Party gave rise to any fear of harm as distinct from the harm they claimed to fear by reason of his party membership, nor did any such argument clearly arise from their evidence. The Tribunal referred to the first applicant's provision of his truck to the Fiji Labour Party in its reasons (at 5) and concluded that there is no evidence that people who supported the party in the past or present are being subjected to any serious discrimination or harm, either at a societal level or by agents of the state (at 17). In these circumstances, I agree with the Minister's submission and this ground must fail. 29 In the first applicant's outline of submissions dated 6 August 2008, two additional grounds of appeal are raised in addition to the four grounds in the draft notice appeal.
Case: SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816
Outcome: considered
At the hearing before this Court, the Minister conceded that the applicants had been pointed in the direction of pursuing the s 417 application by the Tribunal implicitly and by the Federal Magistrate explicitly. I am mindful of the fact that the applicants are self-represented and may not have obtained legal advice in pursuing one course over another, instead of pursuing both courses simultaneously. I am also mindful of the conclusion of Graham J in SZGNO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1816 , where His Honour said at [11]: 'In my opinion the learned Federal Magistrate has fallen into error in concluding that by making an application to the Minister under s 417 of the Act and the subsequent delay the Applicant thereby elected to accept the correctness of the Tribunal's decision.'
Case: SZHRZ v Minister for Immigration and Citizenship [2008] FCA 1440
Outcome: distinguished
In the present case, there is no evidence before the Court that in electing to pursue Ministerial intervention under s 417 , the applicants chose to abandon their rights of appeal, such as by the filing of a notice of discontinuance: cf., SZHRZ v Minister for Immigration &amp; Citizenship [2008] FCA 1440. The applicants received notification of the final outcome of their s 417 application from the Minister by letter dated 2 April 2008 and filed the application for an extension of time on 29 April 2008. In my considered view, the applicants, by pursuing the s 417 application, should not be considered as abandoning their rights of appeal in respect of the Tribunal's decision. 22 On the hearing of the application, I indicated to the parties that if I was minded to grant an extension of time to file and serve a notice of appeal, I would proceed to determine the applicants' appeal on the basis of the grounds in the draft notice of appeal and the two further grounds in the first applicant's outline of submissions.
Case: Briffa v Hay (1997) 75 FCR 428
Outcome: cited
The process of decision-making has been explained in a number of cases including Briffa v Hay (1997) 75 FCR 428; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562; and Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. For the purposes of determining this appeal, it is not necessary to refer in detail to those decisions.
Case: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562
Outcome: cited
The process of decision-making has been explained in a number of cases including Briffa v Hay (1997) 75 FCR 428; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562; and Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. For the purposes of determining this appeal, it is not necessary to refer in detail to those decisions.
Case: Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1
Outcome: cited
The process of decision-making has been explained in a number of cases including Briffa v Hay (1997) 75 FCR 428; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562; and Cullinane v Mercer Benefit Nominees Ltd [2006] FCAFC 82 ; (2006) 152 FCR 1. For the purposes of determining this appeal, it is not necessary to refer in detail to those decisions.
Case: Croft v Minister for Health (1983) 45 ALR 449
Outcome: cited
I agree with the contention that the Trustee did fail properly to apply cl 27(g) of the Trust Deed. It is clear that it had a discretion as to whether to appoint Public Trustee or some other person to be trustee for the SST benefit: see cl 27(g)(ii). It does not appear to have exercised that discretion, because it has said in its letter of 25 October 2006 that it simply applied a rule or policy without regard to the particular circumstances of the case. See Croft v Minister for Health (1983) 45 ALR 449; Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405.
Case: Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405
Outcome: cited
I agree with the contention that the Trustee did fail properly to apply cl 27(g) of the Trust Deed. It is clear that it had a discretion as to whether to appoint Public Trustee or some other person to be trustee for the SST benefit: see cl 27(g)(ii). It does not appear to have exercised that discretion, because it has said in its letter of 25 October 2006 that it simply applied a rule or policy without regard to the particular circumstances of the case. See Croft v Minister for Health (1983) 45 ALR 449; Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: cited
In those circumstances, even assuming that the Tribunal should have given Mr Genikas a further opportunity to comment upon that new material, there was no operative breach of the obligation to accord procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145 147; Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 420; Sommer v NM Superannuation Pty Ltd [2001] FCA 923 at [34] . That is, even if strictly speaking the Tribunal should have given Mr Genikas the opportunity to comment further on that additional material, its failure to do so in the particular circumstances did not in fact cause him any unfairness as the Tribunal (as its reasons show) did not in fact have regard to that additional material in making its decision. In all other respects, Mr Genikas was given a copy of the material which Ellen Appleby had provided to the Tribunal and the opportunity to respond to it.
Case: Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 420
Outcome: cited
In those circumstances, even assuming that the Tribunal should have given Mr Genikas a further opportunity to comment upon that new material, there was no operative breach of the obligation to accord procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145 147; Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 420; Sommer v NM Superannuation Pty Ltd [2001] FCA 923 at [34] . That is, even if strictly speaking the Tribunal should have given Mr Genikas the opportunity to comment further on that additional material, its failure to do so in the particular circumstances did not in fact cause him any unfairness as the Tribunal (as its reasons show) did not in fact have regard to that additional material in making its decision. In all other respects, Mr Genikas was given a copy of the material which Ellen Appleby had provided to the Tribunal and the opportunity to respond to it.
Case: Sommer v NM Superannuation Pty Ltd [2001] FCA 923
Outcome: cited
In those circumstances, even assuming that the Tribunal should have given Mr Genikas a further opportunity to comment upon that new material, there was no operative breach of the obligation to accord procedural fairness: see Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145 147; Turner v Official Trustee in Bankruptcy (1996) 71 FCR 418 at 420; Sommer v NM Superannuation Pty Ltd [2001] FCA 923 at [34] . That is, even if strictly speaking the Tribunal should have given Mr Genikas the opportunity to comment further on that additional material, its failure to do so in the particular circumstances did not in fact cause him any unfairness as the Tribunal (as its reasons show) did not in fact have regard to that additional material in making its decision. In all other respects, Mr Genikas was given a copy of the material which Ellen Appleby had provided to the Tribunal and the opportunity to respond to it.
Case: Miller v Cameron [1936] HCA 13 ; (1936) 54 CLR 572
Outcome: cited
The important consideration for the Trustee and, subject to s 37(6) of the Act, for the Tribunal is the best interests of the beneficiary or the beneficiaries and the security of the trust property: Miller v Cameron [1936] HCA 13 ; (1936) 54 CLR 572 at 580 581. In circumstances such as the present, it would be appropriate for the Trustee to be guided by the sorts of considerations to which the Court might have regard when exercising its powers under s 36 of the Trustee Act 1936 (SA). The Trustee must therefore have regard to all the particular facts; cf Re Estate of Roberts (1983) 20 NTR 13 at 17 18; Re Henderson [1940] Ch 764. In Re Grace [1955] QWN 81 the trustee was appointed showed that the putative trustee could secure a better income than the existing trustee.