mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237
Outcome: referred to
has been a difference of judicial opinion as to whether it is appropriate to extend time in a case such as the present. Orders extending time were made by Warren J (as the Chief Justice then was) in Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 (see [15]-[16]) and by Gordon J in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 (see [30]). However, in Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237 ( Read ), French J (as the Chief Justice then was) expressed disagreement with the approach taken in those two cases. His Honour was of the opinion (at [32]-[39]) that s 1322(4)(d) of the Act could not be relied upon to extend time under s 477(2B). French J's reason was that s 477(2B) did not specify a "period for" the making of an application for approval under s 477(2B). I prefer not to embark on any further discussion of the two lines of authority or the making of a choice between them, and will simply make an order that if and to the extent that an extension of time is required, time is extended. For more abundant precaution, I will also give a direction under s 479(3) of the Act, as French J did in Read , that Mr Chamberlain may act on the Indemnities as if he had entered into them with the Court's prior approval. No doubt in giving approval nunc pro tunc and extending time under s 1322(4)(d) and giving a direction under s 479(3) and making a declaration under s 1322(4)(a) , I am being excessively cautious, but this does no harm. The application under s 564 of the Act Annexed to the Earlier Reasons was a summary of the receipts and payments of Mr Chamberlain as liquidator of the Company as at 15 June 2009. One day after the Earlier Reasons were delivered, the Supreme Court of New South Wales made orders by consent in the Construction List Proceeding and the Proof of Debt Interlocutory Proceeding. These included an order that RGH be admitted to prove as an unsecured creditor in the winding up of the Company in the sum of $700,000.00, and that the Company pay RGH's costs of the Construction List Proceeding agreed in the sum of $25,000.00 as an expense of the winding up. Otherwise, orders were made to the effect that the Construction List Proceeding and the Proof of Debt Interlocutory Proceeding were dismissed, all costs orders made in them were vacated, and, subject to the costs order just noted, the parties were ordered to bear their own costs of both proceedings.
Case: Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167
Outcome: referred to
has been a difference of judicial opinion as to whether it is appropriate to extend time in a case such as the present. Orders extending time were made by Warren J (as the Chief Justice then was) in Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 (see [15]-[16]) and by Gordon J in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 (see [30]). However, in Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237 ( Read ), French J (as the Chief Justice then was) expressed disagreement with the approach taken in those two cases. His Honour was of the opinion (at [32]-[39]) that s 1322(4)(d) of the Act could not be relied upon to extend time under s 477(2B). French J's reason was that s 477(2B) did not specify a "period for" the making of an application for approval under s 477(2B).
Case: Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294
Outcome: cited
the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ...
Case: State Bank of New South Wales v Brown 38 ACSR 715
Outcome: cited
the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ...
Case: Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375
Outcome: referred to
has been a difference of judicial opinion as to whether it is appropriate to extend time in a case such as the present. Orders extending time were made by Warren J (as the Chief Justice then was) in Empire (Aust) Nominees Pty Ltd (in liq) v Vince (2000) 35 ACSR 167 (see [15]-[16]) and by Gordon J in Stewart, in the matter of Newtronics Pty Ltd [2007] FCA 1375 (see [30]). However, in Re Read and Another [2007] FCA 1985 ; (2007) 164 FCR 237 ( Read ), French J (as the Chief Justice then was) expressed disagreement with the approach taken in those two cases. His Honour was of the opinion (at [32]-[39]) that s 1322(4)(d) of the Act could not be relied upon to extend time under s 477(2B). French J's reason was that s 477(2B) did not specify a "period for" the making of an application for approval under s 477(2B).
Case: The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602
Outcome: referred to
the Earlier Reasons, I referred (at [86]) to State Bank of New South Wales v Brown 38 ACSR 715 and Household Financial Services Pty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294. In The Australian Steel Co (Operations) Pty Ltd t/as Welded Mesh v EPS Group Pty Ltd (2007) 59 ACSR 602 Austin J referred to these cases and to Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490 ( TJF EBC ) and identified in the following passage (at [70]) considerations to which regard should be had under s 564: As those cases point out, s 564 itself draws attention to the risk assumed by the funding creditor. It is therefore necessary to address the extent and nature of the risk that the funded recovery action will fail, and the extent of any consequent risk that the funds made available for the litigation might be irrecoverable. It appears from Spigelman CJ's judgment in the Brown case, at [40], and Brownie J's observations in the Household Financial Services case (at 296 7), that one has regard to factors including: whether the amounts involved are small; the value recovered; the size of the funding creditor's debt compared with other debts; the proportion that the funding creditor's expenditure bears to the amount recovered; whether the money advanced by the funding creditor has been refunded; whether other unsecured creditors oppose the distribution proposed to the funding creditor; whether other creditors have been given the opportunity to join in the funding and have failed to do so; and the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered. ...
Case: Australian Woollen Mills Ltd v FS Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641
Outcome: considered
Although Exactech was fully aware no later than 3 August 2004 that Global's knee was known as an RBK, Global does not contend that Exactech adopted the RBK acronym for the purpose of appropriating to itself any part of Global's trade or reputation; cf Australian Woollen Mills Limited v FS Walton &amp; Co Limited [1937] HCA 51 ; (1937) 58 CLR 641 at 657. 110 The date for determining whether Global has established a reputation in the name RBK is November 2005 when the first Optetrak RBK was implanted in Queensland. 111 By that date Global had taken steps to market its product to a substantial portion of the target market of about 680 surgeons in Australia. Nevertheless, the evidence of Global's reputation in the name RBK was quite scant. It consisted of seven sources.
Case: British Sugar PLC v James Robertson &amp; Sons Ltd [1996] RPC 281
Outcome: followed
It follows that I would need to be satisfied to a reasonably high standard that the acronym has acquired a secondary meaning amongst orthopaedic surgeons who carry out total knee replacements; Guide Dogs Owners' &amp; Friends' Association Inc v Guide Dog Association of NSW and ACT (1998) 42 IPR 481 at 502. The acronym would need to be close to a household word for the product amongst those surgeons; British Sugar PLC v James Robertson &amp; Sons Limited [1996] RPC 281 at 306. 137 I have already found that the evidence does not satisfy me that the RBK acronym has become so closely associated with Global's RBK as to be distinctive of that prosthesis. The same finding disposes of the claim that RBK has acquired a secondary meaning. 138 Global's submission that no other prosthetic knee was referred to in Australia by the name RBK does not advance its case. Nor does the dearth of references to that acronym in the literature or on the worldwide web.
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357
Outcome: followed
Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] .
Case: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: followed
The question of whether the conduct of Orthotech and Exactech is misleading or deceptive, or likely to be so, must be determined by reference to the class of prospective purchasers of the Optetrak RBK; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85, at [102] [103]. 141 All that needs to be reiterated before turning to the question which arises is the principle that the conduct must be determined by reference to its effect on the hypothetical ordinary or reasonable member of the class; Puxu at 199, 210-211; Nike at [102] [103]. 142 Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] . 145 However, there are two short answers to this submission. First, the hypothetical reasonable purchaser is a sophisticated and experienced medical practitioner. Second, the checks and balances in the process of ordering and implanting the prosthesis are sufficient to dispel anything more than a fanciful possibility that the purchaser will be misled; cf Nike at [105]. 146 There was no dispute about the first of these propositions. The second was supported by a body of uncontroversial evidence. The evidence as to the checks and balances may be summarised as follows. 147 First, it is plain that the suppliers of knee prostheses market their products to the surgeons who implant prosthetic knees. They do so in face to face meetings so that, as a consequence, the suppliers' representatives develop a personal relationship with the surgeons.
Case: Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431
Outcome: followed
However, even if the acronym RBK is descriptive, its use by another trader may, upon a consideration of all the circumstances, amount to misleading conduct if the acronym has acquired a secondary meaning so as to be distinctive of Global's product; Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 at 447. 8 Importantly, Global accepts that whether or not RBK is descriptive, it cannot succeed in these proceedings unless it establishes that the acronym RBK is distinctive of its product. That is the essential issue in these proceedings. 9 In Equity Access , Hill J said at 448 that the distinction between descriptive and fancy names is not black and white; rather, there is a continuum. Thus, if the name RBK is closer along the continuum toward descriptive names, the heavier the onus will be upon Global to establish a secondary meaning. Also, small differences in other names will usually be adequate to avoid confusion; Hornsby Building at 229; Equity Access at 448. 135 Moreover, it seems to me that the acronym RBK, as used in the target market of orthopaedic surgeons, is, at very least a long way toward the descriptive end of the continuum to which Hill J referred in Equity Access. I make that finding based upon the practice of using acronyms in the medical profession and upon the basis of the evidence of Drs Morris, Caldwell and Morgan as to their recognition of the RBK label. 159 At most, the position seems to me to be analogous to that which was described as temporary and commercially irrelevant confusion by Lockhart J in Lumley Life Limited v 1OOF of Victoria Friendly Society (1989) 16 IPR 316 at 323-324. This does not constitute misleading conduct; see also Equity Access at 449.
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216
Outcome: followed
It is well established that, ordinarily, the use of a descriptive trade name ensures that it is not distinctive of a business and that its application to other like businesses will not ordinarily mislead the public; Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216 at 229. 9 In Equity Access , Hill J said at 448 that the distinction between descriptive and fancy names is not black and white; rather, there is a continuum. Thus, if the name RBK is closer along the continuum toward descriptive names, the heavier the onus will be upon Global to establish a secondary meaning. Also, small differences in other names will usually be adequate to avoid confusion; Hornsby Building at 229; Equity Access at 448.
Case: Lumley Life Ltd v 1OOF of Victoria Friendly Society (1989) 16 IPR 316
Outcome: followed
At most, the position seems to me to be analogous to that which was described as temporary and commercially irrelevant confusion by Lockhart J in Lumley Life Limited v 1OOF of Victoria Friendly Society (1989) 16 IPR 316 at 323-324. This does not constitute misleading conduct; see also Equity Access at 449.
Case: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2004) 205 ALR 402
Outcome: followed
Global submitted that whether a representation is misleading or deceptive (or likely to be so) depends on the circumstances in which it is made, not on what might happen at a future point of time; Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289 ; (2004) 205 ALR 402 at [43] . 158 I do not consider those observations to be in point. The procedures to which I have referred in the hospital ordering and implanting process are concerned with the detection of errors rather than the correction of misleading or deceptive conduct.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: followed
The question of whether the conduct of Orthotech and Exactech is misleading or deceptive, or likely to be so, must be determined by reference to the class of prospective purchasers of the Optetrak RBK; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85, at [102] [103]. 16 Prosthetic knees are purchased by orthopaedic surgeons specialising in knee replacements and by the purchasing departments of hospitals. The nature of the market and the way in which prosthetic knees are ordered and implanted require close consideration. This is because the whole of the circumstances must be looked at in order to determine whether the impugned conduct is misleading or deceptive; Puxu at 199. 17 Mr Michael Ribot has had a long history of involvement in the distribution of orthopaedic products. His experience dates back to at least 1981. 18 In about 1990, Mr Ribot started distributing orthopaedic products for DePuy Inc, a leading international orthopaedic product supplier, which is now owned by Johnson &amp; Johnson, Inc. 141 All that needs to be reiterated before turning to the question which arises is the principle that the conduct must be determined by reference to its effect on the hypothetical ordinary or reasonable member of the class; Puxu at 199, 210-211; Nike at [102] [103]. 142 Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] . 148 Second, the decision to purchase a knee prosthesis is likely to be a carefully considered one having regard to the cost of the prosthesis, which is in the order of $7,000; Puxu at 211. 149 Third, as a matter of professional practice, a surgeon is likely to take care in the selection of the prosthesis. The considerations to which Dr Breit referred in the passage set out at [99] above, demonstrates the close involvement of the surgeon in the decision making process. 150 Fourth, surgeons tend to have a preferred brand of prosthesis. Dr Breit's observations point to the care which would be taken in a decision to switch brands.
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: followed
Also, whether or not the impugned conduct constitutes misleading or deceptive conduct is a question of fact to be determined objectively in the light of all the surrounding circumstances; Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Puxu at 199, 210-211; Nike at [100]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2005) 212 ALR 357 at [39] .
Case: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Outcome: cited
In Short v F W Hercus Pty Ltd (1993) 40 FCR 511, Burchett J said (at 518): 'The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.' I also refer to, without repeating, the observations of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [50]-[57].
Case: Fetz v Qantas Airways (1997) 77 IR 443
Outcome: cited
The Industrial Relations Commission of South Australia in Zajaczkowski v Podean Electronic Industries Pty Ltd (No 4) (1996) 69 IR 307 discussed the common law distinction between contracts of apprenticeship and contracts of service. The distinctive features of a contract of apprenticeship were discussed by Vice President Ross in Fetz v Qantas Airways (1997) 77 IR 443 at 454 and by the Full Bench of the Commission on appeal ( Qantas Airways v Fetz (1998) 84 IR 52 at 65-66).
Case: George A Bond and Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498
Outcome: considered
In George A Bond and Co Ltd (In Liquidation) v McKenzie [1929] AR (NSW) 498, Street J said (at 503-504): 'Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.'