mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379
Outcome: referred to
In the course of the hearing and the reading of evidence, there were objections to certain material prepared by Professor Nicholls concerning material said to have been before the Committee. The principal objection taken by the Applicant was that to allow such evidence would be contrary to the principle of 'judicial immunity,' as discussed in the judgments of Gaudron J in Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 and Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575. Those decisions were concerned with the operation of s 435(1) of the Migration Act 1958 (Cth), which confers on members of the Refugee Review Tribunal ("RRT") the same protection and immunity as a member of the Administrative Appeals Tribunal. In the present case, s 106F(1) of the Act gives to Committee members in the performance of their duties the same protection and immunity as that given to a Justice of the High Court. 63 Her Honour held that the entire general protection and immunity of a Justice of the High Court is conferred on a member of the RRT by s 435(1), and that this immunity extends to the disclosure of any aspect of the decision-making process. In her Honour's view, the purpose of such a provision was to provide freedom of thought and independence of judgment. Her Honour found no difficulty with the proposition that, in appropriate cases, a judge may be required to disclose 'the record' on which the judge has acted. However, in her Honour's view, the production of additional material beyond the record could breach immunity: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 at 383. 64 In respect of several of the interrogatories at issue in Herijanto , her Honour found that answers would not disclose the decision-making process and therefore these were permitted. However, where Gaudron J considered that the nature of the interrogatories sought compulsory disclosure of aspects of the decision-making process, her Honour held that they constituted a contravention of s 435(1). The offending interrogatories were consequently set aside by her Honour.
Case: Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575
Outcome: referred to
In the course of the hearing and the reading of evidence, there were objections to certain material prepared by Professor Nicholls concerning material said to have been before the Committee. The principal objection taken by the Applicant was that to allow such evidence would be contrary to the principle of 'judicial immunity,' as discussed in the judgments of Gaudron J in Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379 and Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575. Those decisions were concerned with the operation of s 435(1) of the Migration Act 1958 (Cth), which confers on members of the Refugee Review Tribunal ("RRT") the same protection and immunity as a member of the Administrative Appeals Tribunal. In the present case, s 106F(1) of the Act gives to Committee members in the performance of their duties the same protection and immunity as that given to a Justice of the High Court. 65 In the later Herijanto decision, her Honour held that the protection conferred by s 435(1) extended not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of their decision-making process. It was also noted by her Honour that whether or not the privilege extended to the revelation, by whatever means, of the decision-making processes of individual members, it would not be right to order discovery to enable the plaintiffs to do indirectly what they could not do directly. Accordingly, her Honour refused the discovery application: Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575.
Case: Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410
Outcome: cited
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ ( Bhardwaj ); Touma v Saparas [2000] NSWCA 11 at [27] ). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410 at [27] : Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ ( Bhardwaj ); Touma v Saparas [2000] NSWCA 11 at [27] ). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410 at [27] : Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: cited
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ ( Bhardwaj ); Touma v Saparas [2000] NSWCA 11 at [27] ). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410 at [27] : Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
Case: Touma v Saparas [2000] NSWCA 11
Outcome: cited
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ ( Bhardwaj ); Touma v Saparas [2000] NSWCA 11 at [27] ). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1415 ; (2005) 41 AAR 410 at [27] : Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
Case: Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 , 56 IPR 182
Outcome: applied
way of contrast, whether a mark is " deceptively similar " is not to be determined by a side by side comparison, but rather by reference to whether there is a likelihood of deception or confusion from a recollection or impression of the registered mark: Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 at [143] [2002] FCA 390 ; , 56 IPR 182 at 216. Allsop J there observed (citations omitted): [143] The question of deceptive similarity must be judged by a comparison different from the side by side comparison undertaken to assess substantial identity; the question being the likelihood of deception or confusion from a recollection or impression of the registered mark. Thus, a side by side comparison is inadequate, and too narrow a test. The comparison is between, on the one hand, the impression based on recollection of the registered mark used in a normal or fair manner that persons of ordinary intelligence and memory would have, and, on the other hand, the impressions that such persons would get from the impugned mark as it appears in the use complained of ... See also: E &amp; J Gallo Winery [2008] FCA 934 at [53] to [55], 77 IPR at 79 to 80. It is not appropriate when making this comparison to undertake a wider enquiry of the kind undertaken in a passing off action or in a proceeding in which a contravention of Part V of the Trade Practices Act is alleged: CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [44] , [2000] FCA 1539 ; 52 IPR 42 at 62 per Ryan, Branson and Lehane JJ. In assessing whether the marks are deceptively similar, it is relevant to consider the context in which customers are likely to form their impressions of the marks: Australian Woollen Mills Ltd v FS Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 658 per Dixon and McTiernan JJ; Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 per Kitto J; Anheuser-Busch Inc [2002] FCA 390 at [153] , [2002] FCA 390 ; 56 IPR 182 at 218 per Allsop J.
Case: Ardelle v Spastic Society of Victoria Ltd [2001] FCA 220
Outcome: cited
purpose of an award of interest, however, is compensatory and not punitive: Ardelle v Spastic Society of Victoria Ltd [2001] FCA 220 at [13] . Whatever be the reason for the delay in the resolution of the present proceeding, it is not a delay that can be attributed to the Applicants. Nor can it be said that the Applicants delayed in promptly commencing the present proceeding. Interest, it is considered, should be awarded to compensate the Applicants for being kept out of their money. The only question is as against which Respondent and for what period of time. Any assessment is necessarily imprecise and certainly involves no mathematical certainty. It is considered that both the Fourth and Fifth Respondents should pay interest pursuant to s 51A as from 30 August 2008. But for the delays occasioned by either the Fourth or Fifth Respondent the proceeding would in all likelihood have been heard and resolved by that date.
Case: Australian Competition and Consumer Commission v Chen [2003] FCA 897 , 132 FCR 309
Outcome: cited
Mark Foys [2000] FCA 1626 , 104 FCR 61 , conduct was held to fall within s 53(c) and (d) in circumstances where a television sales company pursued a marketing strategy of associating itself with the defunct Mark Foys department store. See also: 10 th Cantanae (1987) 79 ALR 299. A breach of s 53(c) was made out in Australian Competition and Consumer Commission v Chen [2003] FCA 897 , 132 FCR 309 in circumstances where a person operating an internet web site falsely represented that the site had some affiliation with or association with the Sydney Opera House. See also Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903.
Case: Australian Competition and Consumer Commission v Francis [2004] FCA 487 , 142 FCR 1
Outcome: applied
with s 52 , it is unnecessary for the purposes of s 53(c) or (d) " for there to be evidence that any natural person intended to mislead and deceive ... or even that any natural person knew that the representations were misleading or deceptive or likely to be so ": Australian Competition and Consumer Commission v Francis [2004] FCA 487 at [82] , [2004] FCA 487 ; 142 FCR 1 at 26 to 27 per Gray J.
Case: Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903
Outcome: referred to
Mark Foys [2000] FCA 1626 , 104 FCR 61 , conduct was held to fall within s 53(c) and (d) in circumstances where a television sales company pursued a marketing strategy of associating itself with the defunct Mark Foys department store. See also: 10 th Cantanae (1987) 79 ALR 299. A breach of s 53(c) was made out in Australian Competition and Consumer Commission v Chen [2003] FCA 897 , 132 FCR 309 in circumstances where a person operating an internet web site falsely represented that the site had some affiliation with or association with the Sydney Opera House. See also Australian Competition and Consumer Commission v Wizard Mortgage Corporation Limited [2002] FCA 1317 , (2002) ATPR 41-903.
Case: Australian Woollen Mills Ltd v FS Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641
Outcome: applied
assessing whether the marks are deceptively similar, it is relevant to consider the context in which customers are likely to form their impressions of the marks: Australian Woollen Mills Ltd v FS Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 658 per Dixon and McTiernan JJ; Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595 per Kitto J; Anheuser-Busch Inc [2002] FCA 390 at [153] , [2002] FCA 390 ; 56 IPR 182 at 218 per Allsop J.
Case: Baxter v Obacelo Pty Limited [2001] HCA 66 , 205 CLR 635
Outcome: cited
as joint tortfeasors arises where two or more persons act in concert in committing a tort: Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574. Brennan CJ, Dawson and Toohey JJ there observed at 580 to 581 (some citations omitted): The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The Koursk, ([1924] P 140 at 159-160), for there to be joint tortfeasors, "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint ... Gummow J made like observations at 600. Applied: Louis Vuitton Malletier SA v Toea Pty Ltd [2006] FCA 1443 at [164] , [2006] FCA 1443 ; 156 FCR 158 at 196. See also: Baxter v Obacelo Pty Limited [2001] HCA 66 at [18] , [2001] HCA 66 ; 205 CLR 635 at 646 to 647 per Gleeson CJ and Callinan J.
Case: Betta Foods Australia Pty Ltd v Betta Fruit Bars Pty Ltd (1998) 41 IPR 347
Outcome: applied
summary form, there is a need to establish goodwill or reputation attaching to the relevant goods in the mind of the purchasing public, misrepresentation and damage or a likelihood of damage: Betta Foods Australia Pty Ltd v Betta Fruit Bars Pty Ltd (1998) 41 IPR 347 at 356 to 357 per Goldberg J. The misrepresentation relied upon need only be likely to lead the public to believe that the goods are those of the plaintiff &#8212; proof of actual deception is not required: Osgaig [2004] FCA 1394 at [85] , 213 ALR at 168 per Weinberg J.
Case: Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No 1) [2008] FCA 1760 , 79 IPR 454
Outcome: applied
of a domain name may constitute conduct falling within s 52: e.g. CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279 , 128 FCR 408 ; Macquarie Bank Ltd v Seagle [2008] FCA 1417 , 79 IPR 72. Indeed, as in the present proceeding, in intellectual property cases it is not uncommon for a plaintiff to contend that the conduct of a respondent in using a domain name or a business name constitutes not only a contravention of ss 52 and 53 of the Trade Practices Act and the tort of passing off, but also a contravention of the Trade Marks Act : Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No 1) [2008] FCA 1760 , 79 IPR 454; SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821 , 169 ALR 1. There remain, however, a number of differences of potential significance between each of the causes of action. Where consideration is being given to passing off, there may be a requirement of some exclusive reputation &#8212; but there is no such requirement in relation to Part V: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 at [99] , [2007] FCAFC 70 ; 159 FCR 397 at 418 to 419 per Black CJ, Emmett and Middleton JJ. For the purposes of the Trade Practices Act , the question is not whether an applicant has shown a sufficient reputation in a particular get-up or name; the question is whether a respondent's use of the particular get-up or name is likely to mislead or deceive persons familiar with the applicant's product to believe that the two products are associated: Bing! Software Pty Ltd [2008] FCA 1760 at [71] , 79 IPR at 475 per Collier J.
Case: CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 , 52 IPR 42
Outcome: applied
way of contrast, whether a mark is " deceptively similar " is not to be determined by a side by side comparison, but rather by reference to whether there is a likelihood of deception or confusion from a recollection or impression of the registered mark: Anheuser-Busch Inc v Budejovicky Budvar [2002] FCA 390 at [143] [2002] FCA 390 ; , 56 IPR 182 at 216. Allsop J there observed (citations omitted): [143] The question of deceptive similarity must be judged by a comparison different from the side by side comparison undertaken to assess substantial identity; the question being the likelihood of deception or confusion from a recollection or impression of the registered mark. Thus, a side by side comparison is inadequate, and too narrow a test. The comparison is between, on the one hand, the impression based on recollection of the registered mark used in a normal or fair manner that persons of ordinary intelligence and memory would have, and, on the other hand, the impressions that such persons would get from the impugned mark as it appears in the use complained of ... See also: E &amp; J Gallo Winery [2008] FCA 934 at [53] to [55], 77 IPR at 79 to 80. It is not appropriate when making this comparison to undertake a wider enquiry of the kind undertaken in a passing off action or in a proceeding in which a contravention of Part V of the Trade Practices Act is alleged: CA Henschke &amp; Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [44] , [2000] FCA 1539 ; 52 IPR 42 at 62 per Ryan, Branson and Lehane JJ.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 , 159 FCR 397
Outcome: cited
remain, however, a number of differences of potential significance between each of the causes of action. Where consideration is being given to passing off, there may be a requirement of some exclusive reputation &#8212; but there is no such requirement in relation to Part V: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 at [99] , [2007] FCAFC 70 ; 159 FCR 397 at 418 to 419 per Black CJ, Emmett and Middleton JJ. For the purposes of the Trade Practices Act , the question is not whether an applicant has shown a sufficient reputation in a particular get-up or name; the question is whether a respondent's use of the particular get-up or name is likely to mislead or deceive persons familiar with the applicant's product to believe that the two products are associated: Bing! Software Pty Ltd [2008] FCA 1760 at [71] , 79 IPR at 475 per Collier J.
Case: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 , 202 CLR 45
Outcome: applied
does not fall within ss 52 or 53 merely because a member of the public is caused to wonder whether goods may come from the same source: Chase Manhattan Overseas Corporation v Chase Corporation Ltd (1986) 12 FCR 375. Lockhart J there observed at 377: Conduct does not contravene s 52 merely because members of the public would be caused to wonder whether it might not be the case that two products come from the same source or two services are provided by the same source or two business names suggest that they come from the same stable. The purpose of Pt V of the Trade Practices Act 1974 is to protect consumers by eliminating unfair trade practices. The object of s 52 is to prevent misleading or deceptive conduct which will affect the identification of goods or services. Conduct which merely causes some uncertainty in the minds of the public does not infringe s 52. Beaumont J there further observed that a likelihood of deception will readily be inferred where the parties are engaged in " allied or related " fields of activity: (1986) 12 FCR at 392. And in Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 at [105] , [2000] HCA 12 ; 202 CLR 45 at 87, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ observed that: [105] ... The initial question which must be determined is whether the misconceptions or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. These were the decisions Siopis J had in mind when considering claims for contravention of ss 52 and 53 (d) in Cash Converters Pty Ltd v Tallut Pty Ltd [2005] FCA 939 , (2005) ATPR 42-074. The essence of the action in passing off, it may thus be noted, is the protection of a plaintiff's goodwill attaching to a business or commercial venture. In Campomar [2000] HCA 12 at [108] , 202 CLR at 88, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ thus observed that "... passing-off, at least so far as concerns equitable relief, protects against injury to the goodwill built up by the activities of the plaintiff ". It is not concerned with an invasion of privacy: 10 th Cantanae (1987) 79 ALR at 317 per Gummow J.