mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Paul v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: followed
the references I have already given, may be added the remarks of Allsop J (with whom Heerey J relevantly agreed), in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . His Honour there observed that whatever the outer boundaries of relevant and irrelevant considerations, they do not encompass a failure expressly to mention part of a competing body of evidence before the tribunal, provided that the elements or integers of the claim are addressed. Here, it is plain that the MRT addressed the appellant's claim that his medical condition prevented him from travelling overseas. The appellant's submission that the MRT was required to expressly grapple with the other medical evidence is outside the boundaries of judicial review. The appeal must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 23 AUGUST 2006 Counsel for the Appellant: Mr J R Young Solicitor for the Appellant: Simon Diab &amp; Associates Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 11 August 2006 Date of Judgment: 23 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1113.html
Case: Rezaei v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1294
Outcome: discussed
in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] , Allsop J observed that Yusuf does not stand for the proposition that a tribunal has failed to take into account a relevant consideration merely because it has not referred to a piece of evidence which the Court thinks relevant. To this may be added the endorsement of the relevant passage in Rezaei by the Full Court in MZWBW (to which Federal Magistrate Lloyd-Jones referred) at [26] and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] .
Case: Thirukkumar v Minister for Immigration &amp; Multicultural Affairs [2002] FCAFC 268
Outcome: referred to
this may be added the endorsement of the relevant passage in Rezaei by the Full Court in MZWBW (to which Federal Magistrate Lloyd-Jones referred) at [26] and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] .
Case: WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2003) 75 ALD 630
Outcome: followed
as was said by a Full Court (French, Sackville and Hely JJ) in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46], it is not necessary for a tribunal to refer to every piece of evidence and every contention of an applicant in its written reasons; there is a distinction between failure to refer to evidence and failure to address a contention which constitutes a claim or an integer of a claim. This passage of WAEE was referred to with approval by the Full Court in MZWBW at [27]. It was also referred to by Federal Magistrate Lloyd-Jones in his reference to the relevant paragraph of MZWBW. When the learned Federal Magistrate's reasons are considered in light of these well established statements of principle, they can be seen to be entirely without error. Indeed, his Honour's finding at [21] that the MRT must have had regard to other medical evidence, including that of Dr Dinakar, though not essential to the correctness of the decision, seems to me to be entirely correct. Given the process which led to the production and submission of Dr Patapanian's report, it is difficult to accept the appellant's submission that the MRT failed to have regard to the earlier reports. What is more, the MRT's failure to refer to Dr Dinakar's report is quite understandable. This is because the last sentence of the report of 30 May 2004 specifically deferred to the more expert opinion of a specialist. Dr Patapanian was the very specialist to whom Dr Dinakar referred the appellant for an opinion on the question of whether he was able to travel. Notwithstanding this, Dr Patapanian made no mention of that issue. Dr Patapanian's failure to refer to that issue is not supportive of the appellant's claim. As the learned Federal Magistrate said at [25], given the doctor's diagnosis, it was open for the MRT to make a finding that he did not have the condition he asserted.
Case: Colbeam Palmer Limited and Another v Stock Affiliates Pty Limited [1968] HCA 50 ; (1968) 122 CLR 25
Outcome: cited
In Dart Industries Inc v D&eacute;cor Corporation Pty Ltd (1993)179 CLR 101 at 121 Mason CJ, Deane, Dawson and Toohey JJ cited with approval what was said by Windeyer J in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 42-43: The true rule, I consider, is that a person who wrongly uses another man's industrial property patent, copyright, trade mark is accountable for any profits which he makes which are attributable to his use of the property which was not his... If one man makes profits by the use or sale of some thing, and that whole thing came into existence by reason of his wrongful use of another man's property in a patent, design or copyright, the difficulty disappears and the case is then, generally speaking, simple. In such a case the infringer must account for all the profits which he thus made. Windeyer J had earlier (at 37) drawn a distinction between patent and trade mark infringement (the instant case being the latter). If a patent infringer sells an article made wholly in accordance with the invention and thereby obtains more than it cost him to acquire or make it, he is accountable for the difference as profit because he has "infringed the patentee's monopoly right to make, use, exercise and vend the invention" (that being the statutory test of infringement then applicable). However, the profit for which a trade mark infringer is accountable is not the profit from selling the article itself but the profit from selling it under the trade mark.
Case: Peter Pan Manufacturing Corporation v Corsets Silhouette Ltd [1964] 1 WLR 96
Outcome: cited
Peter Pan Manufacturing Corporation v Corsets Silhouette Ltd [1964] 1 WLR 96 concerned confidential information as to a particular style of brassiere. Pennycuick J at 108-109 rejected an argument that profits should be limited to the amount by which the profit exceeded the profit the defendant would have made if it had manufactured the article without the use of that information. In his Lordship's view the manufacture of the article in question of itself involved the use of the confidential information and the defendants could not have manufactured that article at all without the use of the confidential information. That case seems closely analogous to the present one. 15 In the present case the presentation of Mr Wallz at the Reed workshop involved blatant and wholesale copying of the Original Manual, particularly of its structure and layout. As already mentioned, participants were each given a copy of the Reed Manual which was substantially the same as the Original Manual. Mr Wallz used slides which contained headings and information the same as that contained in the Original Manual and substantially the same as slides produced and used by Tendersearch. Mr Wallz frequently referred to the content of the Reed Manual as a supplement to the projected slides. Twice during the course of the day Mr Wallz handed out documents containing exercises. Attendees broke into groups and worked on these exercises. These had similarities in content and layout to like documents created and used by Tendersearch although the similarities are not as striking as those between the Reed Manual and the Original Manual. 16 While doubtless Mr Wallz made use of his own knowledge and experience in relation to tender responses when he conducted the Reed workshop, he would not have been able to take up the opportunity to do so had it not been for his use of the Original Manual. That use was fundamental to the presentation of the workshop. The case is similar in that regard to Dart and Peter Pan . The gross revenue received by him should be the starting point for the calculation of profit.
Case: Sheldon v Metro-Goldwyn Pictures Corp 106 F 2d 45 (1939)
Outcome: cited
However, nothing that the majority said in Dart casts doubt on the opening part of Harvey CJ in Eq's statement quoted above. It would be wrong in principle to allow Mr Wallz a deduction for the time he had spent working up his presentation with the aid of Tenderwatch's Original Manual. This would be tantamount to making a copyright owner pay an infringer for the time and effort spent in infringement. As was said in Sheldon v Metro-Goldwyn Pictures Corp 106 F 2d 45 (1939) at 51, "a plagiarist may not charge for his labour in exploiting what he has taken".
Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24
Outcome: cited
For the purpose of an account of profits an infringer can only claim costs in fact incurred (including costs attributable to the infringing work: Dart ). The infringer cannot claim costs not actually incurred, even though they might reasonably have been incurred. Thus in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24 the infringer company had paid salaries to its directors but submitted a report of a consultant purporting to set out a "fair remuneration", which was in the order of three times that actually paid. Lindgren J at [178] rejected this claim, pointing out that the plaintiff must take the business of the infringer as it is. 20 The present case is not precisely on all fours with LED Builders because the infringer Mr Wallz was a sole trader and did not employ anybody. However, as a matter of ordinary business practice the "profit" he made for conducting the Reed workshop was the amount he received from Reed less his actual outlays. If his time spent was truly worth what he says, presumably he would have charged Reed $17,500. By way of example, if a barrister charged $1,000 for an opinion, he or she would not calculate the number of hours spent and determine that there was a "profit" of, say, $300. 21 The cost of printing and GST are properly allowable because they have reduced the actual profit or benefit derived by Mr Wallz from the infringement. 22 Accordingly the profit for which Mr Wallz must account is $2,311.69 being his gross receipt from Reed of $2,711.71 less printing costs of $153.50 and GST of $246.52.
Case: SZLWP v Minister for Immigration and Anor [2009] FMCA 792
Outcome: referred to
appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZLWP v Minister for Immigration and Anor [2009] FMCA 792. In that judgment, given on 27 August 2009, the learned federal magistrate dismissed an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal. The decision of the Tribunal was signed on 18 November 2008 and handed down on 19 November 2008. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship, the first respondent for this appeal, refusing to grant to the appellant a protection visa. The Tribunal is the second respondent to this appeal. The appellant is a citizen of Bangladesh. He arrived in Australia on 1 April 2007. His application for a protection visa was made on 1 May 2007. The Minister's delegate made a decision on 30 July 2007 refusing to grant that visa. The appellant sought review of the decision of the Minister's delegate. The matter went to the Tribunal and subsequently to the Federal Magistrates Court, which set aside the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law. The application for review of the Minister's delegate's decision was then assigned to another member of the Tribunal, who heard and determined it. The Tribunal conducted a further hearing on 16 September 2008, at which the appellant was present and at which he gave evidence and presented arguments, with the assistance of an interpreter fluent in the Bengali language. The appellant was also represented by a registered migration agent who attended the Tribunal hearing.
Case: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403
Outcome: followed
a litigant in person, the applicant is not entitled to his costs to the extent that they are referable to his own time, including the amount of any income lost as a result of attending to the prosecution of this proceeding: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403. He is, however, entitled to his disbursements: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288. I shall order that he have his disbursements, by which I intend the taxing officer to be guided by Boswell as qualified by Cachia . I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 22 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: G.Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1107.html
Case: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288
Outcome: followed
a litigant in person, the applicant is not entitled to his costs to the extent that they are referable to his own time, including the amount of any income lost as a result of attending to the prosecution of this proceeding: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403. He is, however, entitled to his disbursements: Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 93 FCR 288. I shall order that he have his disbursements, by which I intend the taxing officer to be guided by Boswell as qualified by Cachia . I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 22 August 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: G.Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1107.html
Case: ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258
Outcome: followed
I raised with the parties my concern that the restraint was in terms of ' a substantial part ' of the Nine Weekly Program Schedule. I agree with what was said by Lockhart J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 at 249 that injunctions ' should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction '. There is or is likely to be a difference of opinion as to what constitutes a substantial part, by reference to particular times and titles. The parties referred me to orders that have been made in other cases concerning infringement of copyright and in particular Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 where Tamberlin J made orders restraining the respondents in terms of ' the whole or a substantial part of any of the sound recordings '. Nine also submits that it is appropriate to make orders utilising statutory expressions ( Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308). 11 Both Nine and Ice assure me that they consent to an order by reference to "a substantial part" of the Nine Weekly Program Schedules. Ice's consent is given with the understanding that ' contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed ' ( ICI at 259 per Lockhart J). Nine emphasises that the understanding of the orders is in the context of the proceedings as a whole and framed by those proceedings ( Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91 ,736 at [9] per Heerey J). Nine and Ice submit that it is for the parties to ascertain the meaning of "substantial part" by reference to the Full Court decision. In those circumstances, I will make the order by reference to "substantial part".
Case: Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99
Outcome: cited
The order restrains Ice from using the copyright work (the Nine Weekly Program Schedule) or a substantial part of the copyright work, being the Nine Program Time and Title Information. Clearly, Nine is entitled to restrain Ice from using its program and time and title information in the way described in the evidence, as set out in Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99. To frame the order as proposed by Ice, in terms of the use of the Nine Program Time and Title Information ' to the extent that such information reproduces...a substantial part of the Nine Weekly Program Schedule ', raises further uncertainty, despite the fact that each party professes to understand what it means. 14 The appropriate order, it seems to me, should not be limited to what is presently called the IceGuide. Ice makes no secret of the fact that it seeks to continue its business in a way that it believes does not infringe Nine's copyright. In so doing it may continue to produce a guide that does not equate to the IceGuide. I am not satisfied that the definition of "IceGuide" in the proposed orders overcomes that problem. 15 The order I propose is as follows: Without limiting order 3 above the first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from using (including for the purpose of producing the Ice Guide) the whole or a substantial part of the Nine Weekly Program Schedule in a manner that: (a) reproduces in a material form; (b) authorises reproduction in material form of; (c) communicates to the public; (d) authorises a communication to the public of, the Nine Program Time and Title Information (whether made before or after the date of the making of this order) without the licence of the applicant.
Case: Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308
Outcome: cited
I raised with the parties my concern that the restraint was in terms of ' a substantial part ' of the Nine Weekly Program Schedule. I agree with what was said by Lockhart J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 at 249 that injunctions ' should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction '. There is or is likely to be a difference of opinion as to what constitutes a substantial part, by reference to particular times and titles. The parties referred me to orders that have been made in other cases concerning infringement of copyright and in particular Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 where Tamberlin J made orders restraining the respondents in terms of ' the whole or a substantial part of any of the sound recordings '. Nine also submits that it is appropriate to make orders utilising statutory expressions ( Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308).
Case: Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878
Outcome: cited
I raised with the parties my concern that the restraint was in terms of ' a substantial part ' of the Nine Weekly Program Schedule. I agree with what was said by Lockhart J in ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 at 249 that injunctions ' should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction '. There is or is likely to be a difference of opinion as to what constitutes a substantial part, by reference to particular times and titles. The parties referred me to orders that have been made in other cases concerning infringement of copyright and in particular Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 where Tamberlin J made orders restraining the respondents in terms of ' the whole or a substantial part of any of the sound recordings '. Nine also submits that it is appropriate to make orders utilising statutory expressions ( Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd [1994] FCA 1000 ; (1994) ATPR 41-308).
Case: Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91 ,736
Outcome: cited
Both Nine and Ice assure me that they consent to an order by reference to "a substantial part" of the Nine Weekly Program Schedules. Ice's consent is given with the understanding that ' contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed ' ( ICI at 259 per Lockhart J). Nine emphasises that the understanding of the orders is in the context of the proceedings as a whole and framed by those proceedings ( Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91 ,736 at [9] per Heerey J). Nine and Ice submit that it is for the parties to ascertain the meaning of "substantial part" by reference to the Full Court decision. In those circumstances, I will make the order by reference to "substantial part".
Case: Australian Naturalcare Products Pty Ltd v McGrath; in the matter of Pan Pharmaceuticals Limited (in liq) [2006] FCA 1403
Outcome: related
parties have isolated some issues which need to be determined in order that the matter can be brought to a conclusion following the delivery of reasons ( Australian Naturalcare Products Pty Ltd v McGrath; in the matter of Pan Pharmaceuticals Limited (in liq) [2006] FCA 1403). The first thing to note is that there was an error in the reasons in relation to MSD costs etc which should have been deducted from revenue, not gross profit. The parties are agreed about that and the ultimate orders should reflect that correction. The second matter for consideration is whether or not, in saying what I did at paragraph 104 of the judgment, I intended to include savings of wages costs together with the MSD costs in assessing an amount of 15 per cent, rather than 20 per cent as proposed by Mr McGuiness. I believe that is what I said and it is what I intended. I accepted the methodology of Mr McGuiness in general, but, as I explained, when I looked at his assessment of the various integers, including wages costs savings, the overall view I came to was that 15 per cent in total rather than 20 per cent in total was the correct figure. The next issue for determination arises out of the necessity to allow for interest on an emerging or pro rata basis. In the course of doing that on monthly rests, it appeared that in three months more revenue was earned than what was called the 'benchmark' which represented spreading the actual loss over the period. The way the applicant's spreadsheet is composed means that the ultimate principal amount varies from the amount allowed in the judgment because of the effect of those months. There is no scope at this stage for any variation of the assessment I made of $4 million for that particular component, whatever the result may be in terms of interest, and the final figures should not reflect any variation of the principal sums that I have assessed and found in the judgment. It seems to me that, subject to checking the arithmetic, the respondent's latest spreadsheet probably reflects the principles that I have enunciated.