mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536
Outcome: applied
In Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536, I determined that the date 'when the application is made' is the date of the filing in the Court of the application for native title in respect of 'the area' referred to in ss 47A(1)(c) and 47B(1)(c). Plainly, 'the area' referred to in those sub-sections must be an area within the area the subject of a claimant application. However, as was explained by Sundberg J in Neowarra at [686] and [721], the area need not be the whole of the area claimed as that could lead to clearly unintended consequences in relation to the operation of ss 47A and 47B. Rather, the relevant area is the particular area with which each of the sections is concerned.
Case: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316
Outcome: cited
Although occupation is a question of fact involving matters of fact and degree, some general principles can be discerned from the cases. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FC '), Beaumont and von Doussa JJ considered the meaning of the term 'occupy' in ss 47A and 47B and stated (at 437 [449]): 'A broad view should be taken of the word "occupy" in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area.'
Case: Risk v Northern Territory of Australia [2006] FCA 404
Outcome: cited
I am not satisfied that his Honour was clearly wrong and, indeed, I am in agreement with his Honour's approach (cf Risk v Northern Territory of Australia [2006] FCA 404 at [881] ). The rules of the associations are not relevantly distinguishable from the rules considered by Sundberg J. It must follow that the property of each of the three associations is held by them expressly for the benefit of Aboriginal peoples.
Case: Gumana v Northern Territory of Australia [2005] FCA 50
Outcome: cited
The State contended, correctly in my view, that exclusive native title was not recognised in these areas under s 223(c) of the NTA . As a consequence, ss 47A and 47B cannot be relied upon to claim exclusive possession because the sections are concerned with past extinguishment, rather than non-recognition: see Gumana v Northern Territory of Australia [2005] FCA 50 at [263] . 124 The State contended that past extinguishment by the exercise of the right to erect an improvement on a leasehold to which s 47A or s 47B applies, is not to be disregarded notwithstanding that the sections require the grant of the lease or prior interest to be disregarded. In my view, the contention is not correct because the past extinguishment only occurred by the grant of the lease or prior interest which conferred the right to construct the improvement. As is clear from De Rose No 2 at [157], the extinguishment arises from the grant of the lease and operates when the improvement is constructed. It follows that, if the grant of the lease or other prior interest is to be disregarded under s 47A or s 47B, there can be no extinguishing effect by the exercise of the right to construct the improvement. 125 Public works that are category A past acts (s 229(4)) or previous exclusive possession acts (s 23B(7)) extinguish native title. A public work is defined in s 253 of the NTA to mean: '(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities: (i) a building, or other structure (including a memorial), that is a fixture; or (ii) a road, railway or bridge; or (iia) where the expression is used in or for the purposes of a Division 2 or 2A of Part 2 a stock-route; or (iii) a well, or bore, for obtaining water; or (iv) any major earthworks; or (b) a building that is constructed with the authority of the Crown, other than on a lease.'
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Outcome: applied
It is common ground between the plaintiffs on the one hand, and the defendants for whom Mr Thomson appears on the other hand, that the test which I should apply in determining the present application is the ordinary test applicable when the Court is considering the grant of an interlocutory injunction in aid of private rights. This test is captured in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [8] to [21] (pp 216 220) (per Gleeson CJ); at [59] to [61] (pp 231 232) (per Gaudron J); and at [86] to [92] (pp 239 242); at [98] to [100] (pp 244 246); and at [105] (p 248) (per Gummow and Hayne JJ). Gleeson CJ (as he then was) also specifically cited with approval Spry, Principles of Equitable Remedies , 5 th ed (1997) pp 446 56.
Case: Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249
Outcome: cited
The plaintiffs submitted that: (a) It is well established that the use of company funds to defend oppression proceedings may, in certain circumstances, constitute oppression (see Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 591 592; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 733; and Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249 at [90] to [99] (pp 267 269); and Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97 at [250] to [258]). (b) Where the issue has been raised prior to the final determination and there is a significant risk of the company's resources being expended in the defence of the interests of the majority, there is no reason why the Court would not step in at the interlocutory stage and make appropriate orders. In support of this submission, Counsel for the plaintiffs relied upon certain observations made by Brereton J in Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6 at [52] and at [61] (second dot point). (c) The normal test for the grant of an interlocutory injunction applies in the circumstances of the present case; (d) The plaintiffs have established a strong case that there is a serious question to be tried; and (e) The balance of convenience favours the grant of an injunction because " ... there is a decidedly uneven playing field ... " in the sense that the plaintiffs are compelled to fund the litigation in circumstances where they have no assets of any significance whereas their protagonists, the Buskens, have access to company funds.
Case: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688
Outcome: cited
The plaintiffs submitted that: (a) It is well established that the use of company funds to defend oppression proceedings may, in certain circumstances, constitute oppression (see Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 591 592; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 733; and Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249 at [90] to [99] (pp 267 269); and Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97 at [250] to [258]). (b) Where the issue has been raised prior to the final determination and there is a significant risk of the company's resources being expended in the defence of the interests of the majority, there is no reason why the Court would not step in at the interlocutory stage and make appropriate orders. In support of this submission, Counsel for the plaintiffs relied upon certain observations made by Brereton J in Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6 at [52] and at [61] (second dot point). (c) The normal test for the grant of an interlocutory injunction applies in the circumstances of the present case; (d) The plaintiffs have established a strong case that there is a serious question to be tried; and (e) The balance of convenience favours the grant of an injunction because " ... there is a decidedly uneven playing field ... " in the sense that the plaintiffs are compelled to fund the litigation in circumstances where they have no assets of any significance whereas their protagonists, the Buskens, have access to company funds. 30 However, that is not the end of the matter. None of the authorities to which I have been referred involved an application for interlocutory relief founded upon the same ground as the ground relied upon by the plaintiffs in the present application. Further, some of those authorities support the proposition that, because it may be difficult to determine on an interlocutory basis which costs may be regarded as the legitimate responsibility of the corporate defendants over which the oppression suit is being fought, courts are reluctant to make a determination in advance, ie, at an interlocutory stage ( Fexuto [1998] NSWSC 413 ; 28 ACSR 688 at 733; 20 28; Re A Company (No 001126 of 1992) [1994] 2 BCLC 146 at 155 156; Grace 25 ACLC 141 ; [2007] NSWSC 6 at [49] to [52] and at [59] to [61]). This latter point may not be a very strong point in favour of the first, second, fourth and fifth defendants in the present case but is one that nonetheless needs to be weighed in the balance. It seems to me that the Court is generally reluctant to interfere at the interlocutory stage with the payment of legal fees and expenses unless there is good reason to do so.
Case: Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97
Outcome: cited
The plaintiffs submitted that: (a) It is well established that the use of company funds to defend oppression proceedings may, in certain circumstances, constitute oppression (see Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 591 592; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 733; and Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249 at [90] to [99] (pp 267 269); and Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97 at [250] to [258]). (b) Where the issue has been raised prior to the final determination and there is a significant risk of the company's resources being expended in the defence of the interests of the majority, there is no reason why the Court would not step in at the interlocutory stage and make appropriate orders. In support of this submission, Counsel for the plaintiffs relied upon certain observations made by Brereton J in Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6 at [52] and at [61] (second dot point). (c) The normal test for the grant of an interlocutory injunction applies in the circumstances of the present case; (d) The plaintiffs have established a strong case that there is a serious question to be tried; and (e) The balance of convenience favours the grant of an injunction because " ... there is a decidedly uneven playing field ... " in the sense that the plaintiffs are compelled to fund the litigation in circumstances where they have no assets of any significance whereas their protagonists, the Buskens, have access to company funds.
Case: Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6
Outcome: cited
The plaintiffs submitted that: (a) It is well established that the use of company funds to defend oppression proceedings may, in certain circumstances, constitute oppression (see Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 591 592; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 733; and Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249 at [90] to [99] (pp 267 269); and Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97 at [250] to [258]). (b) Where the issue has been raised prior to the final determination and there is a significant risk of the company's resources being expended in the defence of the interests of the majority, there is no reason why the Court would not step in at the interlocutory stage and make appropriate orders. In support of this submission, Counsel for the plaintiffs relied upon certain observations made by Brereton J in Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6 at [52] and at [61] (second dot point). (c) The normal test for the grant of an interlocutory injunction applies in the circumstances of the present case; (d) The plaintiffs have established a strong case that there is a serious question to be tried; and (e) The balance of convenience favours the grant of an injunction because " ... there is a decidedly uneven playing field ... " in the sense that the plaintiffs are compelled to fund the litigation in circumstances where they have no assets of any significance whereas their protagonists, the Buskens, have access to company funds. 30 However, that is not the end of the matter. None of the authorities to which I have been referred involved an application for interlocutory relief founded upon the same ground as the ground relied upon by the plaintiffs in the present application. Further, some of those authorities support the proposition that, because it may be difficult to determine on an interlocutory basis which costs may be regarded as the legitimate responsibility of the corporate defendants over which the oppression suit is being fought, courts are reluctant to make a determination in advance, ie, at an interlocutory stage ( Fexuto [1998] NSWSC 413 ; 28 ACSR 688 at 733; 20 28; Re A Company (No 001126 of 1992) [1994] 2 BCLC 146 at 155 156; Grace 25 ACLC 141 ; [2007] NSWSC 6 at [49] to [52] and at [59] to [61]). This latter point may not be a very strong point in favour of the first, second, fourth and fifth defendants in the present case but is one that nonetheless needs to be weighed in the balance. It seems to me that the Court is generally reluctant to interfere at the interlocutory stage with the payment of legal fees and expenses unless there is good reason to do so.
Case: Re A Company (No 001126 of 1992) [1994] 2 BCLC 146
Outcome: cited
However, that is not the end of the matter. None of the authorities to which I have been referred involved an application for interlocutory relief founded upon the same ground as the ground relied upon by the plaintiffs in the present application. Further, some of those authorities support the proposition that, because it may be difficult to determine on an interlocutory basis which costs may be regarded as the legitimate responsibility of the corporate defendants over which the oppression suit is being fought, courts are reluctant to make a determination in advance, ie, at an interlocutory stage ( Fexuto [1998] NSWSC 413 ; 28 ACSR 688 at 733; 20 28; Re A Company (No 001126 of 1992) [1994] 2 BCLC 146 at 155 156; Grace 25 ACLC 141 ; [2007] NSWSC 6 at [49] to [52] and at [59] to [61]). This latter point may not be a very strong point in favour of the first, second, fourth and fifth defendants in the present case but is one that nonetheless needs to be weighed in the balance. It seems to me that the Court is generally reluctant to interfere at the interlocutory stage with the payment of legal fees and expenses unless there is good reason to do so.
Case: Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559
Outcome: cited
The plaintiffs submitted that: (a) It is well established that the use of company funds to defend oppression proceedings may, in certain circumstances, constitute oppression (see Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 591 592; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413 ; (1998) 28 ACSR 688 at 733; and Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 ; (2005) 54 ACSR 249 at [90] to [99] (pp 267 269); and Food Improvers Pty Ltd v BGR Corp Pty Ltd (No 3) [2007] FCA 97 at [250] to [258]). (b) Where the issue has been raised prior to the final determination and there is a significant risk of the company's resources being expended in the defence of the interests of the majority, there is no reason why the Court would not step in at the interlocutory stage and make appropriate orders. In support of this submission, Counsel for the plaintiffs relied upon certain observations made by Brereton J in Grace v Grace (2007) 25 ACLC 141 ; [2007] NSWSC 6 at [52] and at [61] (second dot point). (c) The normal test for the grant of an interlocutory injunction applies in the circumstances of the present case; (d) The plaintiffs have established a strong case that there is a serious question to be tried; and (e) The balance of convenience favours the grant of an injunction because " ... there is a decidedly uneven playing field ... " in the sense that the plaintiffs are compelled to fund the litigation in circumstances where they have no assets of any significance whereas their protagonists, the Buskens, have access to company funds.
Case: Spry, Principles of Equitable Remedies , 5 th ed (1997)
Outcome: cited
It is common ground between the plaintiffs on the one hand, and the defendants for whom Mr Thomson appears on the other hand, that the test which I should apply in determining the present application is the ordinary test applicable when the Court is considering the grant of an interlocutory injunction in aid of private rights. This test is captured in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [8] to [21] (pp 216 220) (per Gleeson CJ); at [59] to [61] (pp 231 232) (per Gaudron J); and at [86] to [92] (pp 239 242); at [98] to [100] (pp 244 246); and at [105] (p 248) (per Gummow and Hayne JJ). Gleeson CJ (as he then was) also specifically cited with approval Spry, Principles of Equitable Remedies , 5 th ed (1997) pp 446 56.
Case: Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25
Outcome: cited
Section 126 of the Act allows an applicant, at its option, to claim damages or an account of profit. The nature of the choice was explained by Windeyer J in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 (at 32): 'The plaintiff whose mark has been infringed can choose between damages or an account of profits. He cannot have both. They are alternative remedies. The distinction between an account of profits and damages is that by the former the infringer is required to give up his ill-gotten gains to the party whose rights he has infringed: by the latter he is required to compensate the party wronged for the loss he has suffered.' That observation clearly proceeded on the basis that the damages recoverable for infringement of a trade mark are compensatory.
Case: Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251
Outcome: cited
A review of the authorities relating to the availability and principles underlying the award of exemplary damages in tort was set out in Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251. Although not necessarily to be regarded as an anomalous or illogical remedy, it is nevertheless an unusual one. In my opinion where a statute creates a remedy by way of damages for breach of a proprietary right, then absent specific provision or necessary implication, it should not be read as extending that remedy to exemplary damages. In this case a statutory formulation is used which has been construed as compensatory. It contrasts notably with the express provision in the Copyright Act for "additional damages". Exemplary damages are not available under s 126. 37 The applicants claim their compensatory damages under the following heads: 1. Loss of sales through eBay. 2. Loss through devaluation of their product. 3. Loss through damage to their reputations. 38 Under the heading of 'Loss of sales" the applicants referred to the numbers of DVD titles relevant to each applicant sold by Mr Hasluck on eBay. They also referred to the number of DVDs delivered up by him relevant to each applicant. As a matter of inference, having regard to the marks on the delivered up DVDs and Mr Hasluck's acknowledgment of his infringing conduct in relation to sales over eBay, each of the DVDs sold through the eBay bearing the title belonging to a particular applicant would have borne the trade mark of that applicant.
Case: Nominet UK v Diverse Internet Pty Ltd (No 2) (2005) IPR 131
Outcome: cited
The Court was not assisted by any evidence as to the licence fees or royalties charged by the applicants in respect of the particular titles at the time of their sale or at all. The reference to "sell through" price in Mr Kerin's evidence did not provide any basis for the estimation of either a licence fee or a royalty. In this connection the evidence necessary to quantify the loss was in the hands of the applicants. Its absence may be contrasted with the extensive evidence of a notional royalty offered by the applicant in Nominet UK v Diverse Internet Pty Ltd (No 2) (2005) 68 IPR 131. In that case damages were assessed, in relation to the infringing use of copyright material "mined" from a domain name register, by the calculation of a "reasonable royalty", that sum which would be agreed between a willing licensor and a willing licensee in a hypothetical arms length negotiation. The approach has been held to offer guidance in other cases of copyright infringement: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24. Nominet was a more difficult case than the present because the copyright owner was a not-for-profit company which was not engaged in the business of licensing its copyright.
Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24
Outcome: cited
The Court was not assisted by any evidence as to the licence fees or royalties charged by the applicants in respect of the particular titles at the time of their sale or at all. The reference to "sell through" price in Mr Kerin's evidence did not provide any basis for the estimation of either a licence fee or a royalty. In this connection the evidence necessary to quantify the loss was in the hands of the applicants. Its absence may be contrasted with the extensive evidence of a notional royalty offered by the applicant in Nominet UK v Diverse Internet Pty Ltd (No 2) (2005) 68 IPR 131. In that case damages were assessed, in relation to the infringing use of copyright material "mined" from a domain name register, by the calculation of a "reasonable royalty", that sum which would be agreed between a willing licensor and a willing licensee in a hypothetical arms length negotiation. The approach has been held to offer guidance in other cases of copyright infringement: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24. Nominet was a more difficult case than the present because the copyright owner was a not-for-profit company which was not engaged in the business of licensing its copyright.