mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674 , 105 ALD 516
Outcome: cited
final proposed Ground of Appeal is understood to be referring to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 , 233 CLR 18. It was there concluded that a well-founded fear of persecution need not always extend to the whole territory of an applicant's country of nationality for the applicant to qualify as a refugee. It was further concluded that a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country. Gummow, Hayne and Crennan JJ there concluded: [24] ... What is reasonable, in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. ... [26] ... [I]n particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography. Applied: SZJZV v Minister for Immigration and Citizenship [2008] FCA 628 at [17] to [18] per Gilmour J; SZMEI v Minister for Immigration and Citizenship [2008] FCA 1649 at [15] per Reeves J; SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674 at [10] , 105 ALD 516 at 519 per Jagot J.
Case: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
Outcome: cited
may finally be noted that, even if there has been a failure to comply with s 424AA(b)(iv) , the consequence is that s 424A(2A) is not engaged and the Tribunal is not thereby excused from compliance with s 424A(1): SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 at [55] per Lander J. Sections 424A and 424AA are complementary: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] per Moore J; SZMIS v Minister for Immigration and Citizenship [2009] FCA 167 at [10] per Marshall J. But no failure to comply with s 424A(1) is asserted by the now Appellant and none is otherwise discernible.
Case: SZMEI v Minister for Immigration and Citizenship [2008] FCA 1649
Outcome: cited
final proposed Ground of Appeal is understood to be referring to SZATV v Minister for Immigration and Citizenship [2007] HCA 40 , 233 CLR 18. It was there concluded that a well-founded fear of persecution need not always extend to the whole territory of an applicant's country of nationality for the applicant to qualify as a refugee. It was further concluded that a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country. Gummow, Hayne and Crennan JJ there concluded: [24] ... What is reasonable, in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. ... [26] ... [I]n particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography. Applied: SZJZV v Minister for Immigration and Citizenship [2008] FCA 628 at [17] to [18] per Gilmour J; SZMEI v Minister for Immigration and Citizenship [2008] FCA 1649 at [15] per Reeves J; SZLVG v Minister for Immigration and Citizenship [2008] FCA 1674 at [10] , 105 ALD 516 at 519 per Jagot J.
Case: SZMIS v Minister for Immigration and Citizenship [2009] FCA 167
Outcome: cited
may finally be noted that, even if there has been a failure to comply with s 424AA(b)(iv) , the consequence is that s 424A(2A) is not engaged and the Tribunal is not thereby excused from compliance with s 424A(1): SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 at [55] per Lander J. Sections 424A and 424AA are complementary: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] per Moore J; SZMIS v Minister for Immigration and Citizenship [2009] FCA 167 at [10] per Marshall J. But no failure to comply with s 424A(1) is asserted by the now Appellant and none is otherwise discernible.
Case: SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
Outcome: cited
may finally be noted that, even if there has been a failure to comply with s 424AA(b)(iv) , the consequence is that s 424A(2A) is not engaged and the Tribunal is not thereby excused from compliance with s 424A(1): SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 at [55] per Lander J. Sections 424A and 424AA are complementary: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [2] per Moore J; SZMIS v Minister for Immigration and Citizenship [2009] FCA 167 at [10] per Marshall J. But no failure to comply with s 424A(1) is asserted by the now Appellant and none is otherwise discernible.
Case: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Outcome: applied
argument not raised at first instance may be raised on appeal where " it is expedient in the interests of justice to do so ": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so [references omitted]. [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. " To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J (as His Honour then was). See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17] per Lander J.
Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106
Outcome: cited
argument not raised at first instance may be raised on appeal where " it is expedient in the interests of justice to do so ": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so [references omitted]. [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. " To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant ": WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19] , [2004] FCA 106 ; 204 ALR 624 at 629 per French J (as His Honour then was). See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17] per Lander J.
Case: Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13
Outcome: followed
In Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13 (" Proctor &amp; Gamble Co v Reckitt Benckiser ") at [31] et seq, Lewison J (Chancery Division Patents Court) considered and approved these observations, as did the Court of Appeal: see Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605 (" Proctor &amp; Gamble ") at [24], [25], [32] per Jacob LJ, with whom May and Dyson LJJ agreed. As Jacob J said (at [28]) "the informed user is alert to design issues and is better informed than the average consumer in trade mark law". 24 In Walton , the applicant sought to invalidate a poncho design registered by Zap Ltd ("Zap") on the grounds that it lacked novelty, in part because it copied her earlier poncho designs: see Walton at [3], [32]. Zap defended on the grounds that the basic design of the poncho has long been known, and thus there was limited freedom to design: see [15]. Applying his Honour Judge Fysh QC's definition of informed user, as approved by Lewison J in Proctor &amp; Gamble Co v Reckitt Benckiser ( Walton at [36]-[37]), the Registrar accepted Zap's submissions, concluding "I believe that an informed user would be aware that there is limited freedom to design a poncho which is not basically square or rectangular in shape": see Walton at [40]; also at [43]. Based primarily on a difference in neck design, the Registrar found that the Zap design would in fact create a different overall impression on an informed user and thus it was validly registered: see Walton at [39]-[45].
Case: Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605
Outcome: followed
In Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13 (" Proctor &amp; Gamble Co v Reckitt Benckiser ") at [31] et seq, Lewison J (Chancery Division Patents Court) considered and approved these observations, as did the Court of Appeal: see Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605 (" Proctor &amp; Gamble ") at [24], [25], [32] per Jacob LJ, with whom May and Dyson LJJ agreed. As Jacob J said (at [28]) "the informed user is alert to design issues and is better informed than the average consumer in trade mark law".
Case: Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd (UK IPO, 0-027-07, 22 January 2007)
Outcome: discussed
Relevantly to this case, in January 2007, the Design Registrar of the UK Intellectual Property Office cited and applied the Architectural Lighting 'informed user' analysis in ruling on the validity of a clothing design registration: see Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd (UK IPO, 0-027-07, 22 January 2007) (" Walton "). 24 In Walton , the applicant sought to invalidate a poncho design registered by Zap Ltd ("Zap") on the grounds that it lacked novelty, in part because it copied her earlier poncho designs: see Walton at [3], [32]. Zap defended on the grounds that the basic design of the poncho has long been known, and thus there was limited freedom to design: see [15]. Applying his Honour Judge Fysh QC's definition of informed user, as approved by Lewison J in Proctor &amp; Gamble Co v Reckitt Benckiser ( Walton at [36]-[37]), the Registrar accepted Zap's submissions, concluding "I believe that an informed user would be aware that there is limited freedom to design a poncho which is not basically square or rectangular in shape": see Walton at [40]; also at [43]. Based primarily on a difference in neck design, the Registrar found that the Zap design would in fact create a different overall impression on an informed user and thus it was validly registered: see Walton at [39]-[45].
Case: Re Application in the name of Apple Computer Inc (2007) 74 IPR 164
Outcome: considered
In Australia, the Australian Designs Office ("ADO") considered the informed user standard in Re Application in the name of Apple Computer Inc (2007) 74 IPR 164 (" Apple ") and Icon Plastics Pty Ltd [2007] ADO 2 (5 July 2007) (" Icon "). In Icon , the ADO cited the ALRC Report but rejected the view that "a notional informed user is a melding of the (probably divergent) views of those who exemplify a range of informed users. A better approach is to say that, in dealing with this jury question, the legislation defines a standard, such that the registrar or the court should postulate the view of a typical member of a sample of informed users": see Icon at [19]. The Registrar concluded that "to apply the standard of the informed user for the purpose of s 19 would therefore be to postulate a user that is 'reasonably' informed; not either barely informed, on one hand, or fully expert on the other": see Icon at [21]. Apple cited the ALRC Report, this time for the proposition that the informed user standard is objective, and stated the view that an informed user is an ordinary intended user of the product made from the design, who is familiar with the product: see Apple at [11], [14]. 27 There may be a difference in the discussion to date as to what is needed to have the requisite product familiarity. On one view, this familiarity is greater than the information possessed by the average user; on another view, this familiarity is that which is possessed by the ordinary user: compare Architectural Lighting at [50] with Apple at [14]. The former approach is to be preferred. I doubt that, generally, the ordinary user will be appropriately regarded as an informed user. In the present context, women as a class are the ordinary users of ladies' garments, but not all women have the requisite degree of familiarity to be described as informed users. Thus, whilst there will be some women who subscribe to fashion magazines (such as Vogue or Collezioni that illustrated the prior art in this case) and have particular knowledge of, and familiarity with, fashion trends, there will be many other women who lack such knowledge and familiarity. Precedent and the text of s 19(4) indicate that it is from the perspective of someone closer to the former group that the newness and distinctiveness of the Review Design and the similarity of the Redberry garments in terms of overall impression must be judged: compare Architectural Lighting at [50].
Case: Icon Plastics Pty Ltd [2007] ADO 2
Outcome: discussed
In Australia, the Australian Designs Office ("ADO") considered the informed user standard in Re Application in the name of Apple Computer Inc (2007) 74 IPR 164 (" Apple ") and Icon Plastics Pty Ltd [2007] ADO 2 (5 July 2007) (" Icon "). In Icon , the ADO cited the ALRC Report but rejected the view that "a notional informed user is a melding of the (probably divergent) views of those who exemplify a range of informed users. A better approach is to say that, in dealing with this jury question, the legislation defines a standard, such that the registrar or the court should postulate the view of a typical member of a sample of informed users": see Icon at [19]. The Registrar concluded that "to apply the standard of the informed user for the purpose of s 19 would therefore be to postulate a user that is 'reasonably' informed; not either barely informed, on one hand, or fully expert on the other": see Icon at [21]. Apple cited the ALRC Report, this time for the proposition that the informed user standard is objective, and stated the view that an informed user is an ordinary intended user of the product made from the design, who is familiar with the product: see Apple at [11], [14].
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
Counsel for the applicants argued that, when Redberry called Mr Liu, it called the wrong witness, and that it should have called the buyer, Mr Ke. In relation to the absence of Mr Ke, he relied on the rule in Jones v Dunkel (1959) 101 CLR 298 (" Jones v Dunkel "). The applicants' counsel argued that the inference as to Redberry's status as a manufacturer might, in the absence of testimony from Mr Ke, be more comfortably drawn against Redberry. I reject this submission. The evidence was that Mr Ke had not bought the garments in question. This being so, it might fairly be thought unnecessary and even inappropriate to call him. In this circumstance, the absence of testimony from Mr Ke does not justify an application of the rule in Jones v Dunkel . 76 In this context too, counsel for the applicants relied on the similarity between the Redberry garment and the Review Design, as supportive of the fact that the manufacturer of the Redberry garments had copied the Review Design. This would not, however, provide any evidence that Redberry (as opposed to someone else) made the garments in question. Counsel for the applicants also sought to rely on evidence that the applicants and other persons had alleged on other occasions that Redberry had copied garments and thereby infringed copyright and trade mark. For the reasons explained below, however, I would not regard this evidence as admissible.
Case: Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95 ; (1908) 6 CLR 309
Outcome: cited
As noted above, however, if Redberry's buyer commissioned the making of the garments, the buyer did so in China, where the garments were manufactured. Section 21(1)(b) of the Acts Interpretation Act 1901 (Cth) provides that, in any Act, unless the contrary intention appears, "references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth". This provision reflects the common law presumption that statutes are read "as being prima facie restricted in their operation within territorial limits": see Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95 ; (1908) 6 CLR 309 at 363 per O'Connor J, discussed in DC Pearce and RS Geddes, Statutory Interpretation in Australia (6 th ed, 2006) at [5.5]. The effect of s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) is implicitly acknowledged in s 4 of the Designs Act. Section 21(1)(b) of this Act operates to confine the making or offering to make, with which s 71(1)(a) of the Designs Act is concerned, to a making or an offering to make in Australia (as s 4 of the Designs Act reflects): compare Hella-Australia Pty Ltd v Quinton Hazell (Aust) Pty Ltd (1967) 10 FLR 86 (" Hella-Australia "), which Gummow J cited with approval in Carnival Cruise Lines Inc v Sitmar Cruises Ltd (1994) 120 ALR 495 (" Carnival Cruise ") at 509. In Hella-Australia , Street J refused an interlocutory injunction on the basis that an article did not infringe a registered design under s 30(b) of the Designs Act 1906 (Cth) unless the design had been applied to the article in Australia. Following Hella-Australia , Parliament amended s 30, with the result that the importation and sale of articles to which the design had been applied outside Australia were also infringements: see Designs Amendment Act 1967 (Cth) ("the 1967 Amendment") and Polyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 ; (2005) 221 CLR 287 at 293. Although Hella-Australia concerned a provision in the former Act, nonetheless it and the authorities referred to in Carnival Cruise and Carnival Cruise itself, establish that, absent contrary statutory intent, infringements must occur within Australia. Accordingly, on the evidence, Redberry's liability could not arise under s 71(1)(a) but only under s 71(1)(b), (c), (d) or (e).