mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Unilever Australia Ltd v Societe Des Produits Nestl&eacute; SA [2006] FCA 782 ; (2006) 154 FCR 165
Outcome: cited
I consider the shape is to some extent inherently adapted to distinguish, then s 41(5) is applicable. Section 41(5) involves a balancing exercise. With a view to deciding whether the mark does or will distinguish the goods as being Guylian's, the Court is required to consider, in combination, two specific matters: (1) the extent to which the mark is inherently adapted to distinguish, and (2) the use, or intended use, of the mark by Guylian (cf. Kitto J's approach in Clark 111 CLR at 513). The Registrar, and on this appeal the Court, must be "satisfied" that the mark does or will distinguish the goods as being Guylian's: pars 41(5)(b) and (c). It is a balancing exercise in that, for example, a mark that is inherently adapted only to a small degree is thereby likely to require greater evidence that it has been (or will be) used in such a way as to distinguish the relevant goods: see, eg, the approaches of Bennett J in Unilever Australia Ltd v Societe Des Produits Nestl&eacute; SA [2006] FCA 782 ; (2006) 154 FCR 165 ( Nestle ) at [57] and Wilcox J in Time Warner Entertainment Company LP v Stepsam Investments Pty Ltd [2003] FCA 1502 ; (2003) 134 FCR 51 at [42] . Section 41(5) permits the registration of trade marks that are not, by their inherent qualities, sufficiently adapted to distinguish, but which have as at the priority date in fact acquired a capability to distinguish the relevant goods: see Austereo [2004] FCA 968 ; 61 IPR 257 ; see also Clark 111 CLR at 515; British Sugar [1996] RPC 281 at 306; Nestle [2006] FCA 782 ; 154 FCR 165 at [29] . In other words, s 41(5) recognises that marks which are insufficiently inherently adapted to distinguish may nevertheless by their use have become distinctive in the minds of consumers so that they will be able to "do the job of distinguishing" the applicant's goods, that is, they will in fact serve as a badge or an indicator of origin. Accordingly, under s 41(5) an applicant relying on use prior to the priority date will need to point to evidence that the mark has been used as a trade mark , so as to have acquired the requisite capability to distinguish the applicant's goods: see, in the context of s 41(6), Woolworths Ltd v BP Plc (No 2) [2006] FCAFC 132 ; (2006) 154 FCR 97 at [72] and [77] ( BP (No 2) ); Ocean Spray [2000] FCA 177 ; 47 IPR 579 at [38] - [41] , in particular [40]. Guylian's submissions
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
The claim for interlocutory relief may involve consideration of both the legal and factual merits of the final relief sought. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199, Gummow and Hayne JJ (Gaudron J concurring) pointed to the necessity to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought which may or may not be injunctive in nature. Gleeson CJ said (at 219): The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff's claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. It may depend upon the nature of the dispute. For example, if there is little room for argument about the legal basis of a plaintiff's case, and the dispute is about the facts, a court may be persuaded easily, at an interlocutory stage, that there is sufficient evidence to show, prima facie, an entitlement to final relief. The court may then move on to discretionary considerations, including the balance of convenience. 85 Chimaera invoked three propositions in support of its claim for interlocutory relief. The first was that the directors were acting beyond power in making the rights issue because they were caretaker directors pending the outcome of the EGM requisitioned by the aggrieved shareholders. The second was that they were in breach of their duty under s 181 of the Act in making the rights issue for an improper purpose. The third was that they were acting contrary to the interests of the shareholders as a whole or in a way that was oppressive or unfairly prejudicial to Chimaera and other shareholders. 86 Company directors properly appointed have the powers conferred on them by the constitution of the company and by the Act. In the exercise of those powers they are subject to constraints and obligations deriving from the constitution and the Act and from the common law. The term "caretaker" is a metaphorical adjective. It should not be allowed to obscure legal analysis of powers and duties, the proper application of which will vary according to the circumstances.
Case: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Outcome: cited
There was no dispute between the parties that the basis upon which interlocutory injunctive relief is granted requires the applicant for relief to demonstrate a serious question to be tried and that the balance of convenience favours the grant: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148. The two considerations are interdependent. As was said in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 (at 472): ... the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: cited
There was no dispute between the parties that the basis upon which interlocutory injunctive relief is granted requires the applicant for relief to demonstrate a serious question to be tried and that the balance of convenience favours the grant: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148. The two considerations are interdependent. As was said in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 (at 472): ... the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it.
Case: Chief Commissioner of State Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226
Outcome: cited
If there is a caretaker doctrine it has not been defined. The use of an adjectival metaphor does not define a doctrine and can best be regarded as a shorthand reference to the kinds of duties that may constrain the exercise of directors' powers in particular situations including circumstances in which an extraordinary general meeting for the removal of directors has been requisitioned. In my opinion, however, it should be treated with great caution. Such usages which are taxonomical or descriptive, rather than conveying principle or doctrine, have arisen in other areas of the law: see eg the discussion of the term "discretionary trust" in Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at [8] . 92 In Austin RP, Ford HAJ and Ramsay IM, Company Directors Principles of Law and Corporate Governance (LexisNexis, Butterworths, Australia, 2005) at 2.55, the learned authors observed that if there is a principle of caretaker directors it may be thought essential to confine its operation to situations where there is a high degree of certainty that the directors would be removed at the general meeting of the company. Otherwise any such principle could be used by disaffected minority shareholders to disrupt the management of companies. 93 I would not be prepared to rest upon the very uncertain proposition of a "doctrine" of caretaker directors, a conclusion that there is a seriously arguable question, simply because of the requisitioned EGM, the directors lacked power to embark upon the rights issue. I do not regard such an absolute proposition as being of sufficient strength to warrant the grant of injunctive relief. I regard the existence of such a "doctrine" as highly questionable. What I do not regard as questionable is that, in the circumstances in which an EGM has been requisitioned and with a reasonable prospect that the directors may be removed, a rights issue to protect their position would be made for an improper purpose and would, subject to balance of convenience considerations, attract injunctive relief. In so saying I accept that my views both of the law and of the facts are provisional at this interlocutory stage.
Case: Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821
Outcome: cited
The position of directors issuing shares where their own board positions may be at stake was considered by the Privy Council in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821. The Privy Council held that it was unconstitutional for directors to use fiduciary powers over shares in the company for the purpose of destroying an existing majority or creating a new majority. In that case the directors' primary object had been to alter the majority shareholding. They had improperly exercised their powers and the allotment was invalid. Their Lordships said (at 837): Just as it is established that directors, within their management powers, may take decisions against the wishes of the majority of shareholders, and indeed that the majority of shareholders cannot control them in the exercise of these powers while they remain in office ... so it must be unconstitutional for directors to use their fiduciary powers over the shares in the company purely for the purpose of destroying an existing majority, or creating a new majority which did not previously exist. To do so is to interfere with that element of the company's constitution which is separate from and set against their powers. Their Lordships also looked to the approach to assessing purpose and said (at 835): In their Lordships' opinion it is necessary to start with a consideration of the power whose exercise is in question, in this case a power to issue shares. Having ascertained, on a fair view, the nature of this power, and having defined as can best be done in the light of modern conditions the, or some, limits within which it may be exercised, it is then necessary for the court, if a particular exercise of it is challenged, to examine the substantial purpose for which it was exercised, and to reach a conclusion whether that purpose was proper or not. In doing so it will necessarily give credit to the bona fide opinion of the directors, if such is found to exist, and will respect their judgment as to matters of management; having done this, the ultimate conclusion has to be as to the side of a fairly broad line on which the case falls.
Case: Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150
Outcome: cited
The directors have power to effect rights issues. That was not in dispute. The exercise of that power is constrained by their statutory and fiduciary obligations. It must be exercised in good faith in the best interests of the corporation and for a proper purpose: Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power. Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150 at 185 (Dixon J) In that case the directors passed a resolution increasing the voting power of one of them but in the belief that it was in the best interests of the company. The fact that one of them derived a benefit from the resolution did not invalidate it if passed in good faith. If the purpose of the resolution had been simply to alter voting powers, then it would have been invalid.
Case: Utilicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261,465
Outcome: cited
Owen J considered the decision of the Full Court of the Supreme Court of South Australia in Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558. After referring to the judgment of King CJ and the passage quoted above and also the decision of Giles J in Utilicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261,465, his Honour referred to the submission that he should find "... that there is no principle of caretaker directors in Australian law" (at 568). His Honour said (at 568): I simply cannot do that in the light of authority such as Paringa Mining .
Case: Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558
Outcome: cited
Owen J considered the decision of the Full Court of the Supreme Court of South Australia in Woonda Nominees Pty Ltd v Chng (2000) 34 ACSR 558. After referring to the judgment of King CJ and the passage quoted above and also the decision of Giles J in Utilicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261,465, his Honour referred to the submission that he should find "... that there is no principle of caretaker directors in Australian law" (at 568). His Honour said (at 568): I simply cannot do that in the light of authority such as Paringa Mining .
Case: Adsteam Building Industries Pty Limited v The Queensland Cement and Lime Company Limited (No 4) [1985] 1 Qd R 127
Outcome: cited
The Commission submits that an allegation that action was taken by an unknown servant or agent is not liable to be struck out, nor does the fact that the pleading does not specify the person who appointed the agent. The Commission cited various authorities for these propositions. In those circumstances, the Commission submits, it cannot be said that the allegations cannot amount to the conspiracy alleged and the claim should not be struck out ( Adsteam Building Industries Pty Limited v The Queensland Cement and Lime Company Limited (No 4) [1985] 1 Qd R 127 per McPherson J at 133). 37 Mr George contends that the cases relied on by the Commission are not apposite. However, he has not established that the absence of identification is sufficient to cause that part of the pleading to be struck out. 38 From subsequent submissions, it would seem that Mr George does not complain about the lack of specificity of the pleading of agency. He does, however, contend that there are insufficient material facts in relation to the allegations of the tenth to twelfth respondents carrying on business in varying parts of Australia. 45 As was pointed out by McPherson J in Adsteam (at 133) direct evidence in a case of conspiracy is rarely available to the person alleging it. Proof generally rests on inference deduced from acts done in pursuance of the apparent common purpose. His Honour observed that this may mean that evidence of the actual making of the agreement cannot be provided but what can be given are particulars of the acts relied upon to justify the inferences sought to be drawn. 46 The Commission asserts that it has pleaded sufficient specific acts on the part of Mr George. He can respond to allegations that identify conduct in which he engaged together with the tenth to twelfth respondents. The pleading now specifies a greater degree of specificity so far as Mr George's alleged conduct is concerned. The Commission contends that Mr George should be able to respond to those allegations to the extent that they relate to his actions, whether or not all of the other participants in the activity are identified.
Case: Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053
Outcome: cited
As was said by Sackville J in Seven Network v News Ltd [2003] FCA 388 at [21] material facts, not conclusions, must be pleaded with a sufficient degree of specificity, having regard to the subject matter, to convey to the opposite party the case that party has to meet. His Honour observed that it must be apparent on the face of the document that the facts pleaded if proved would establish the cause of action relied on. An example given by Sackville J at [22] was that a mere assertion that an agreement contained a provision that had the purpose or effect of substantially lessening competition is not a proper pleading. It is not suggested by the Commission and it would not cure the pleading if Mr George could request further particulars ( Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053 at [20]-[25]; Shelton v National Roads &amp; Motorists Assn Ltd (2004) 51 ACSR 278 at [18]-[22]). The pleading of a conclusion without underlying material facts is liable to be struck out ( Australian Wool Innovation, Shelton ).
Case: Bray v F Hoffman La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1
Outcome: cited
Mr George says that it is simply not sufficient to plead that a company is "carrying on business". He relies on what was said by Merkel J in Bray v F Hoffman La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 at [62] to the effect that carrying on business is a question of fact that may be affected by agency, location and control by another party. There is a difference between a subsidiary carrying on its own business or whether it is carrying on the business of the parent company. At [72] his Honour observed that, where there is an integrated global enterprise, a subsidiary which is subjected to the exercise of control or influence of the parent should be viewed as carrying on business in Australia as agent of the parent. Justice Merkel emphasised the different factors that would be relevant to a determination of whether the relevant activities are those of the agent or those of the parent. While Mr George says that each of the material facts should be pleaded, it is apparent from the discussion in Bray that the whole of the evidence must be considered in order to come to a conclusion.
Case: Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435
Outcome: applied
As was observed by Young J in Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 at [35] [37] a cause of action can be pleaded at different levels of generality depending on the nature of the case and the subject matter and most pleadings set forth the material facts at a level which involves some element of conclusion. However, broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case he or she has to meet are not sufficient.
Case: Giorgianni v R [1985] HCA 29 ; (1985) 156 CLR 473
Outcome: cited
In answer to Mr George's assertion that the pleading of knowledge on the part of Mr George does not comply with the principles of Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661, the Commission relies on Giorgianni v R [1985] HCA 29 ; (1985) 156 CLR 473 and contends that the pleading of the allegations of aiding, abetting, counselling and procuring the making of the alleged agreement complies with the principles applicable to accessorial conduct in Giorgianni .
Case: Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Outcome: cited
In anticipation of a claim by the Commission that the complexity of the case and the fact that the Commission cannot identify in proper fashion the precise case it hopes to make out until after discovery, Mr George maintains that it is necessary properly to plead the case ( Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 154 per Drummond J). A badly pleaded case cannot, Mr George submits, be allowed to stand in the hope that the gaps and deficiencies will be remedied by subpoenas and discovery. He submits that a right to seek particulars is no answer and, in any event, the Commission has apparently provided such particulars as it can provide. He submits that if that is not the case, the Commission should provide such available particulars and, if there are none, the offending paragraphs and then the entire pleading should be struck out. The Commission has included as a particular, a reservation of a right to supplement the particulars after discovery.
Case: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: cited
In Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553, the High Court referred to Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 where the High Court rejected the submission that a person who subsumes his personality in a company cannot be guilty both as a principal offender in his corporate persona and as an accessory as an individual ( Houghton at [45]). Mr George relied on a number of authorities that would argue against this proposition. However, in relying on this proposition, the pleading cannot be said to be unarguable so that, to the extent that it alleges liability both as the principal and as accessory, it should be struck out.
Case: Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553
Outcome: cited
In Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553, the High Court referred to Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 where the High Court rejected the submission that a person who subsumes his personality in a company cannot be guilty both as a principal offender in his corporate persona and as an accessory as an individual ( Houghton at [45]). Mr George relied on a number of authorities that would argue against this proposition. However, in relying on this proposition, the pleading cannot be said to be unarguable so that, to the extent that it alleges liability both as the principal and as accessory, it should be struck out.
Case: Kernel Holdings Pty Ltd v Rothmans of Pall Mall Ltd [1991] FCA 557
Outcome: cited
The Commission submits that a pleading of a conclusion is not necessarily objectionable; a pleading alleging agency is not objectionable ( Kernel Holdings Pty Ltd v Rothmans of Pall Mall Ltd [1991] FCA 557 per French J at 7). It submits that the pleading represents a reasonable articulation of the case which is sought to be tried. A conclusion of agency will depend on the evidence to be adduced. 47 The Commission accepts that parts of the pleading state conclusions and are of a general nature. It submits that such pleading may still define the issues and inform the respondents of the case they have to meet. In the present case, the Commission says that a level of generality is appropriate and that a conclusion may also be a pleading of a material fact ( Kernel Holdings per French J; State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961 per Drummond J). It submits that this, like Pioneer , is a case in which it is unnecessary to strike out a conclusionary pleading. It is not, the Commission submits, a question whether the facts pleaded are sufficient in themselves to give rise to a cause of action but whether it would be open on the pleadings to prove the facts at the trial which would constitute a cause of action (Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 per Beaumont J at 414). The Commission submits that it has pleaded the overt acts of the alleged conspirators and the conclusion. The Commission says that, taken together, this leads to the conclusion that there was an arrangement or understanding which contained a provision of the type impugned.