mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1
Outcome: cited
is an Administrator of Vehicle Standards: s 22 of the MVSA. It is common ground that proof of vehicle standards is not required: s 143(1)(b) of the Evidence Act 1995 (Cth). The Minister has determined the following relevant standards as vehicle standards pursuant to s 7 of the MVSA: Vehicle Standard (Australian Design Rule 1/00 Reversing Lamps) 2005 White dated 21 November 2005 ("ADR 1"), prescribes the photometric requirements for reversing lamps which will warn pedestrians and other road users that the vehicle is about to move or is moving in the reverse direction, and which during the hours of darkness will aid the driver in reversing manoeuvres; Vehicle Standard (Australian Design Rule 6/00 Direction Indicators) 2005 Yellow / Amber dated 13 December 2006 ("ADR 6"), prescribes the photometric requirements for a device mounted on a motor vehicle or trailer which when operated by the driver signals the latter's intention to change the direction in which the vehicle is proceeding; Vehicle Standard (Australian Design Rule 49/00 Front and Rear Position (Side) Lamps, Stop Lamps and End Outline Marker Lamps) 2005 Red dated 3 April 2007 ("ADR 49"), prescribes the photometric requirements for light-signalling devices which will indicate the presence, width and position of the vehicle when viewed from the front and from the rear. The determination accompanying ADR 1 suggests that the ADR was determined to be a vehicle standard under s 7(1) of the MVSA. No such provision exists. For the purposes of this analysis I have assumed that the determination was in fact made under s 7 of the MVSA. None of the parties suggested that this apparent error invalidated or otherwise altered the operation of the standard, and in any event the authorities hold that, as a general matter, judicial redrafting of obvious typographical errors is permitted: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 21-22; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26 ; (1981) 147 CLR 297 , 305, 311, 321.
Case: Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852
Outcome: cited
the circumstances, the better approach is to assess damages doing the best I can, even if such quantification necessarily involves a degree of speculation and guesswork: eg Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] ; Adidas-Solomon AG v Turner (2003) 58 IPR 66 at [4]-[5]; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 , 183; Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [7] .
Case: Quinlivan v ACCC (2004) 160 FCR 1
Outcome: cited
next matter to be considered is the claim of secondary liability of the Directors under the TPA. The principles are well established. Natural persons will be liable in damages for a contravention by a corporation if they had a "close, rather than a remote involvement in the contravention": Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 , 584. Moreover, the participation in the contravention requires actual, rather than constructive, knowledge of the essential matters that make up the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666-670 and 677, Rural Press Ltd v ACCC [2002] FCAFC 213 ; (2002) 118 FCR 236 at [67] and Quinlivan v ACCC (2004) 160 FCR 1 at [8]-[9].
Case: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177
Outcome: referred to
.au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 at [12] - [26] , Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 , 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows:
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
that one or more of the Representations conveyed was false, misleading or deceptive or likely to mislead or deceive, LED Tech's claims under the TPA fail because LED Tech did not establish an essential element of the cause of action damage: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , 525 (per Mason CJ). Although never properly articulated, the causation and damages theory of LED Tech's TPA claims seemed to be a lost sales theory similar to that underpinning the infringement claim: (1) (a) consumers prefer to buy, or (b) in some cases will only buy; (2) products that are marked as complying with applicable safety standards and that do comply with those standards; (3) LED Tech's lamps comply with the ADRs; (4) had it been known to the market that the Corporate Respondents' products did not comply with the ADRs (ie if they did not bear the Captions); (5) all those who purchased the Corporate Respondents' products; (6) would instead have purchased LED Tech's lamps; (7) such that the Representations caused LED Tech to lose sales in the amount of the Corporate Respondents' sales. As noted earlier, LED Tech's claim seemed to assume that every sale made by the Corporate Respondents of a Condor Product would have been a sale that LED Tech would have made. That is not an assumption that can be made in the infringement context, and it is even more remote in the TPA context. It is not supported by human experience or, more importantly, by the evidence. As I noted at the outset, the market in Australia for LED automotive lamps was highly competitive. There was evidence that certain large manufacturers would only buy from suppliers holding CRNs; however, there was no evidence to show that ordinary consumers, particularly aftermarket consumers, considered safety compliance to be so material as to prevail over factors such as price and convenience. Furthermore, it goes without saying that LED Tech's lost sales, whatever the precise number of units, cannot be double counted. In no event could they be more than the number of units actually sold by the Corporate Respondents. As noted earlier, I calculated infringement damages based on the assumption that the Respondents' sales data reflected the number of units actually sold by them, less a certain (not precisely quantifiable) discount based on the fact that their data was on the conservative side. To receive any damages under the TPA over and above the infringement award, LED Tech would have to satisfy the Court that the TPA contraventions caused it to lose additional sales.
Case: Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1
Outcome: approved
"informed user" concept has also been considered by the courts in the United Kingdom. In Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1 at [59], Judge Fysh QC of the Patents County Court defined an informed use r in the following terms: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design - and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of "the man in the street". " Informed " to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of "what's about in the market?" and "what has been about in the recent past?" I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the "man skilled in the art" whose "nerd-like" (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] ( CA). This formulation was considered and approved by Lewison J in Proctor &amp; Gamble Company 73 IPR 605 at [31], [32] and [41] and was also applied in Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10. To the extent that it matters (and it might not), the Australian Designs Office ("the ADO") has indicated that the informed user concept is an objective test where the user is an ordinary or typical member of a sample of users of the product who is reasonably informed, being neither barely informed nor fully expert: Apple Computer Inc (2007) 74 IPR 164 and Icon Plastics Pty Ltd [2007] ADO 2 as discussed in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [25] .
Case: Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 ; (2002) 208 CLR 460
Outcome: cited
second item is in fact a group of items published by the Administrator and known as "Circulars". The Circulars do not have legislative or regulatory force. The Court cannot have regard to them under s 143 of the Evidence Act 1995 (Cth). What then is the status of the Circulars? One was tendered in evidence (Circular 0-4-26). Others (Circulars 0-2-11, 0-3-2, 0-3-4, 0-3-6, 0-4-18, 0-12-0 and 0-13-1) were provided to the Court following the hearing, although leave to reopen for the purpose of tendering them was neither sought nor granted. I have read the Circulars. They do not contain matters "so generally known that every person may be reasonably presumed to be aware" of them: Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 ; (2002) 208 CLR 460 at [64] (per McHugh J). Accordingly, the Court cannot have regard to them under s 144 of the Evidence Act 1995 (Cth). Putting Circular 0-4-26 to one side, the other Circulars are therefore not properly before the Court and I have not relied on them in coming to the views expressed in these reasons. Circular 0-4-26 is entitled "Application for Component Registration Numbers (CRNs)". It "sets out the requirements and conditions regarding the application for, and issuing of, [CRNs] for vehicle components": par 1.1. Applicants for a CRN can be the component manufacturer, component supplier or the vehicle manufacturer: par 1.5. The CRN process is directed at registering vehicle components to be used in new motor vehicles. The Department of Transport and Regional Services (now known as the Department of Infrastructure, Transport and Regional Services) ("DOTARS") creates a register of components that are commonly used in new vehicles for administrative convenience. The Circular provides that the Administrator of Vehicle Standards will accept CRNs as evidence of compliance in Summary of Evidence submissions. What those submissions are or the use to which they are put, is not explained. In any event, CRNs will only be issued for components that are fitted to new motor vehicles or trailers (par 1.4) and for, inter alia, "(i) Lighting and light signalling devices (various ADRs)": par 1.6. However, CRNs will not be issued for lighting and light-signalling devices using UNECE (United Nations Economic Committee for Europe) regulation approvals (par 1.7) or for components exclusively for the aftermarket (par 1.8). The Circular then goes on to specify the manner in which an applicant applies for a CRN. For example, a separate application is required for each Make-Model and, in the case of combined lighting and signalling devices, separate applications are also required for each different function (eg stop, position or indicator): par 2.4.
Case: World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307
Outcome: cited
then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
next matter to be considered is the claim of secondary liability of the Directors under the TPA. The principles are well established. Natural persons will be liable in damages for a contravention by a corporation if they had a "close, rather than a remote involvement in the contravention": Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 , 584. Moreover, the participation in the contravention requires actual, rather than constructive, knowledge of the essential matters that make up the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666-670 and 677, Rural Press Ltd v ACCC [2002] FCAFC 213 ; (2002) 118 FCR 236 at [67] and Quinlivan v ACCC (2004) 160 FCR 1 at [8]-[9].
Case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429
Outcome: referred to
to ground 3 in the court below, the federal magistrate was correct to say that there is no general obligation on the Tribunal, to conduct its own independent investigation of the appellant's claims. That proposition is now the subject of further authority by the High Court, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429. That authority confirms the proposition that the Tribunal did not have a general obligation to make its own independent inquiries. To the extent to which the appellant placed material before the Tribunal, the Tribunal did conduct a thorough investigation of that material. The Tribunal's reasons for decision run to 48 pages. They are detailed. The Tribunal spent a good deal of time listening to the appellant's case on the two days on which it conducted parts of its hearing. It reasoned in great detail about the difficulties it had in accepting the appellant's account of events that had occurred in relation to him in Bangladesh. Unfortunately, for the appellant, the Tribunal found that it could not accept the truth of most of that account. As to ground 4 in the court below, the appellant has not attempted to suggest in this Court that the federal magistrate was in error in relation to the Tribunal's reliance on independent information. It would have been necessary for the appellant to isolate exactly what items of information the Tribunal regarded as a reason, or part of the reason, for affirming the decision of the Minister's delegate, which it had failed to give particulars of, to the appellant, in accordance with s 424A. Only information that did not fall within one of the exceptions in subs (3) of that section could have been relied on. As to ground 5 in the court below, the three reasons given by the federal magistrate for rejecting that ground were all correct.
Case: Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109
Outcome: referred to
preference that the federal magistrate expressed for not following the judgment of another federal magistrate in SZNAV , has now been confirmed as correct by the judgment of the Full Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. In that case, the Full Court allowed an appeal from the judgment of the federal magistrate who had decided SZNAV . To the extent to which the grounds of appeal to this Court seek to raise different issues from those raised in the Federal Magistrates Court, the appellant cannot succeed on those issues. Manifestly, all of his grounds and his written submissions are seeking to agitate again, matters of fact, determined by the Tribunal. I repeat that this Court does not have the power to deal with those matters of fact. The Tribunal made its findings about the fabrication of police records in Bangladesh, and the unreliability of the documents tendered by the appellant. It is not for this Court to overturn those findings. They were matters of fact for the Tribunal only. The findings certainly do not support the conclusion that the Tribunal made its decision in bad faith, or came to the case with a preset mind. The Tribunal was doing its job of evaluating the evidence relating to the appellant's claim. The fact that the Tribunal did not find in the appellant's favour about his fear of persecution because of his political affiliations or his religion is not a ground for overturning the Tribunal's decision. Again, the Tribunal's function was to evaluate whether the appellant's expressed fear of persecution for those two reasons was a well-founded fear. In each instance, the Tribunal held that the fear was not well-founded. This Court cannot overturn that conclusion on a matter of fact. There is no suggestion that the Tribunal failed to understand the nature of persecution, or the test that it was to apply in reaching that conclusion. Nor is there any evidence of denial of procedural fairness. One ground again raised the issue of the reliability of the documents from Bangladesh. The appellant claimed in his written submission that the Tribunal did not comply with s 424A of the Migration Act , by inviting him to make a written comment before it made those findings. The Tribunal was not obliged to comply with s 424A of the Migration Act in respect of any information in relation to the findings about the documents. There was no information on which the Tribunal relied, as the reason or part of the reason for affirming the decision of the delegate of the Minister in that respect. There was no information, therefore, of which the Tribunal could give the appellant particulars, and seek his comment about the effect of the information. For all of these reasons, the appeal must be dismissed.
Case: SZNAV v Minister for Immigration &amp; Anor [2009] FMCA 693
Outcome: cited
federal magistrate then went on to consider the various provisions of the Migration Act imposing procedural requirements on the Tribunal, to determine whether there had been any failure to comply with the requirements of those provisions. In doing so, his Honour declined at [60]-[61] to follow the judgment of another federal magistrate in SZNAV v Minister for Immigration &amp; Anor [2009] FMCA 693. His Honour concluded that the Tribunal had not fallen into jurisdictional error by means of any failure to comply with any requirement of the provisions of the Migration Act . Both in his notice of appeal to this Court and in his outline of submissions, the appellant has raised three grounds. They do not address the grounds of the application to the Federal Magistrates Court specifically. Nor do they address themselves to the reasons for judgment of the federal magistrate. The first ground is that the Tribunal made its decision in bad faith. That is justified by reference to the Tribunal's findings that the appellant fabricated the documents concerning police records in Bangladesh and that the Tribunal did not believe that the documents from Bangladesh were reliable. The second ground is that the Tribunal failed to consider persecution on the basis of the appellant's Christian religion. The third ground is that the Tribunal failed to exercise its jurisdiction under the Act and the Federal Magistrates Court failed to identify that issue. This ground is particularised as involving a lack of procedural fairness. The denial of procedural fairness is exemplified by reference to the Tribunal's findings in relation to the documents from Bangladesh. In his oral submissions, the appellant has been keen to persuade me that the documents he tendered to the Tribunal were all genuine. He pointed to the relative ease of investigating the genuineness of those documents, particularly to the presence of telephone numbers in some of them, and to the failure of the Tribunal to conduct any such investigation. He submitted that the Tribunal came to the case with a preset mind.
Case: SZNKU v Minister for Immigration &amp; Anor [2009] FMCA 791
Outcome: cited
appeal is from the judgment of the Federal Magistrates Court of Australia in SZNKU v Minister for Immigration &amp; Anor [2009] FMCA 791. That judgment was delivered on 27 August 2009. The learned federal magistrate dismissed with costs an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent to this appeal, signed on 10 March 2009 and delivered on 11 March 2009. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent in this appeal, not to grant the appellant a protection visa. The appellant is a citizen of Bangladesh who arrived in Australia on 17 July 2008. On 28 August 2008, he applied for a protection visa. The decision of the Minister's delegate refusing to grant him that visa was made on 4 November 2008. The Tribunal conducted a hearing on two days, 17 February and 4 March 2009. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined respectively in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two documents, taken together, the "Convention". For present purposes, it is sufficient to say that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
Case: Applicant 'A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 
Outcome: applied
The principles of construction of international tax treaties are not in dispute: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 356 357 per McHugh J; Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146 ; Applicant 'A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Those principles permit the object and purpose of a treaty to be considered in construing it, where necessary.
Case: East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 1623
Outcome: cited
To the extent DAPFI relies on the 'deeming' effect of the provisions of Div 974, it is important to note that those 'deeming' provisions should be construed 'strictly and only for the purpose for which they are resorted to': Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 1623 at 1643.