mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZLJN v Minister for Immigration &amp; Citizenship [2008] FMCA 352
Outcome: cited
An application to review that decision of the Tribunal was dismissed by the Federal Magistrates Court on 4 March 2008: SZLJN v Minister for Immigration &amp; Citizenship [2008] FMCA 352. 5 The Appellant now appeals to this Court. The Notice of Appeal as filed sets forth as follows the Grounds of Appeal , namely: GROUNDS: 1. The Honourable Federal Magistrates Court erred in interpreting the construction of s424A of the Migration Act 1958 ('the Act"). 2. His Honour failed to determine that the purpose of s424A was not served in the proceeding of this applicant. 3. The Honourable Court also erred in law determining that the Refugee Review Tribunal ("the Tribunal") was in a breach of procedural fairness. 4. Additional details will be provided later. No " Additional details " have been provided. The Appellant appeared before this Court unrepresented, albeit with the assistance of an interpreter. He was unable to provide further clarification as to what was intended to be conveyed by the Grounds of Appeal . 6 It is considered that the appeal should be dismissed. 7 Section 424A of the Migration Act 1958 (Cth) provides as follows: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A ; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review ; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446
Outcome: cited
Cadbury claimed that Darrell Lea contravened ss 52 , 53 (c) and (d) of the Trade Practices Act 1974 (Cth), and committed the tort of passing off, by its use of the colour purple in connection with the marketing of its chocolate products. The claim was dismissed: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446. Darrell Lea now seeks an order for costs on an indemnity basis.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 230
Outcome: applied
The jurisdiction to award indemnity costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth) is not in dispute. The circumstances in which such an order should be made cannot be circumscribed: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 230. The usual order for costs in favour of a successful party is on a party and party basis; to justify an order on an indemnity basis (or solicitor-client basis the distinction is a rather murky one: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17] per Underwood J) there should be some special or unusual feature in the case: Preston v Preston [1982] 1 All ER 41 at 58.
Case: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17]
Outcome: cited
The jurisdiction to award indemnity costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth) is not in dispute. The circumstances in which such an order should be made cannot be circumscribed: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 230. The usual order for costs in favour of a successful party is on a party and party basis; to justify an order on an indemnity basis (or solicitor-client basis the distinction is a rather murky one: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17] per Underwood J) there should be some special or unusual feature in the case: Preston v Preston [1982] 1 All ER 41 at 58.
Case: Preston v Preston [1982] 1 All ER 41 at 58
Outcome: applied
The jurisdiction to award indemnity costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth) is not in dispute. The circumstances in which such an order should be made cannot be circumscribed: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 230. The usual order for costs in favour of a successful party is on a party and party basis; to justify an order on an indemnity basis (or solicitor-client basis the distinction is a rather murky one: Burnie Port Corporation Pty Ltd v Bank of Western Australia [2003] TASSC 132 at [17] per Underwood J) there should be some special or unusual feature in the case: Preston v Preston [1982] 1 All ER 41 at 58.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401
Outcome: applied
Alternatively, part of Darrell Lea's costs were incurred in response to Cadbury's late filed evidence it should recover those costs on an indemnity basis. Bound to fail? 4 The trial commenced on 20 March 2006. On 27 February Darrell Lea's solicitors wrote to Cadbury's solicitors asserting in effect that the claim was bound to fail and that indemnity costs would be sought. The letter canvassed a number of issues on which indeed, as it turned out, Darrell Lea subsequently succeeded; namely that Darrell Lea did not market moulded chocolate blocks, that its products were sold from different retail outlets, that purple was used by other chocolate manufacturers, that the words "Darrell Lea" and "Cadbury" were quite different, that Darrell Lea had been a well known brand since the 1920s, and that there was no evidence of actual consumer confusion. 5 However, the letter was not completely prescient as to the way the case unfolded. For example, Cadbury's use of purple was not confined, as the letter asserted, to moulded chocolate blocks from 1994. As the judgment finds, there was widespread use of purple by Cadbury, and in connection with chocolate blocks since the 1920s: see [15], [21], [24]-[29], [96]. Conversely, a major element in the ultimate conclusion against Cadbury, that purple was never used in isolation from the Cadbury name (see [82]-[87], [99]), was not mentioned in the letter. 6 Moreover, read as a whole the letter conveys the impression that the only relevant colour used by Darrell Lea was boysenberry, which was said to be a colour quite different from the shade of purple used by Cadbury. The finding at trial was that Darrell Lea made substantial use of a purple like the colour used by Cadbury, this being a colour distinct from the lighter shade boysenberry: see [41]-[43], [105]. I shall return to the boysenberry issue later. 7 The letter does not contain any offer of settlement, for example that if Cadbury discontinues Darrell Lea will not seek costs. It is not a Calderbank letter and is not part of any negotiation. If the letter had the effect now sought by Darrell Lea, it would become routine for litigants to write letters avowing the strength of their case and threatening indemnity costs in the event of success. Since one or other would be sure to win, indemnity costs would become the rule rather than the exception. 8 More generally, I am not satisfied that this proceeding was brought by Cadbury in "wilful disregard of the known facts or the clearly established law" ( Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401). The fact that there were, as Darrrell Lea submits, no previous cases where Trade Practices Act and passing off claims had succeeded in respect of a single colour is not conclusive; equally there were no cases where such claims had failed.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363
Outcome: cited
Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law. 28 Certainly the size and cost of this litigation is troubling. Although there was no dispute as to the applicable law, and very little real dispute as to primary fact, the trial extended over 12 days, with experienced senior and junior counsel on both sides, and a 10,557 page court book. If Cadbury had its way, the trial would have included issues of quantum and also much expert evidence, and probably taken another week at least. The threat of ruinous costs in such litigation, even if it is "only" irrecoverable costs for a party who succeeds, has important practical consequences for competition: see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [30] - [31] . 29 That said, I do not think there is a proper foundation for a finding that Cadbury conducted the present litigation with the purpose of intimidating, or possibly destroying, a trade rival. While I doubt that those at Cadbury, or their advisors, lost much sleep in anxious rumination as to the dire consequences of this litigation for Darrell Lea, the fact remains that they had a legitimate commercial objective which, once decided upon, necessitated setting in motion the juggernaut of modern litigation. 30 Darrell Lea's characterisation of the case as concerned only with a "relatively trivial" period of use is not valid; see [14]-[21] above. In fact Darrell Lea continued to use a purple shade like that used by Cadbury and, importantly, asserted the right to do so at any time in the future. I found that Darrell Lea's assertion was justified, but that is not to say the matter was trivial from Cadbury's viewpoint.
Case: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55]
Outcome: cited
Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law.
Case: Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21]
Outcome: cited
Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law.
Case: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527
Outcome: cited
Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law.
Case: Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20]
Outcome: cited
Disputes as to names and get-ups between rival traders constitute a familiar genre of commercial litigation. The applicable law is well settled. Questions as to the nature of the reputation enjoyed by a plaintiff and the effect of a defendant's conduct on consumers are likely to be problematic. In the present case Cadbury was obviously encouraged by the experts it had recruited. In the present case I held that most of this evidence was inadmissible: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. Judges of this Court and a learned commentator had previously expressed disquiet about evidence of this nature: Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] , Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , Heydon, Cross on Evidence (7 th Australian ed, 2004) at 930. There had been no decision in this Court ruling directly that such evidence was inadmissible, although there had been English and Irish decisions to that effect: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527, Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] . So while a litigant properly advised should have realised that there were potential problems with evidence of this kind, it would be going too far to say that seeking to tender it demonstrated wilful disregard of clearly established law.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718
Outcome: cited
On 4 February 2003 Cadbury commenced an earlier proceeding, V50 of 2003, seeking essentially the same relief as in the present proceeding. Substantial discovery and other work was done, including the issue of some 50 subpoenas at the request of Cadbury. Cadbury failed to comply with a number of orders for the filing of evidence. Darrell Lea sought an order for dismissal under O 35A r 3 of the Federal Court Rules . On 23 December 2004 Ryan J adjourned the application to enable Cadbury, if so advised, to seek leave to discontinue: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718. Subsequently his Honour granted leave to discontinue on terms that allowed Cadbury to commence a fresh proceeding no later than 7 June 2005. There was also a term that in any such fresh proceeding the parties could have the benefit of discovery already completed and documents already obtained on subpoena: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2005] FCA 112. As to costs, his Honour decided at ([5]) "(o)n a fairly fine balance" not to order solicitor-client costs because in any fresh proceeding the parties would have the benefit of the substantial work already carried out. His Honour was not able to reach a conclusion about the propriety of Cadbury's institution and maintenance of the proceeding, except for the procedural or interlocutory derelictions. These, his Honour considered (at [6]), should not attract a punitive order for costs to be taxed on the higher scale. 11 The decision of Ryan J was not appealed. Obviously I cannot make any order with respect to the costs of the earlier proceeding. Senior counsel for Darrell Lea however argued that when the present proceeding was commenced Cadbury had all the material obtained in the course of the earlier proceeding and should therefore have been aware then that its claim was hopeless. 12 But if there had not been the earlier proceeding it can be assumed that, broadly speaking, the same interlocutory procedures would have been carried out in the present proceeding and the same material obtained. The only difference would be that Cadbury would have been appraised of that material at a later stage and, on Darrell Lea's argument, should have discontinued then. In the end, the question would be the same, namely whether on the material available the claim would show wilful disregard of known facts or clearly established law. For the reasons already given, I am not persuaded that such is the case. 13 The bare fact that a plaintiff discontinues a proceeding and commences another one does not of itself say anything as to the merits of the subsequent proceeding, still less as to whether or not failure in the subsequent proceeding should attract indemnity costs.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2005] FCA 112
Outcome: cited
On 4 February 2003 Cadbury commenced an earlier proceeding, V50 of 2003, seeking essentially the same relief as in the present proceeding. Substantial discovery and other work was done, including the issue of some 50 subpoenas at the request of Cadbury. Cadbury failed to comply with a number of orders for the filing of evidence. Darrell Lea sought an order for dismissal under O 35A r 3 of the Federal Court Rules . On 23 December 2004 Ryan J adjourned the application to enable Cadbury, if so advised, to seek leave to discontinue: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718. Subsequently his Honour granted leave to discontinue on terms that allowed Cadbury to commence a fresh proceeding no later than 7 June 2005. There was also a term that in any such fresh proceeding the parties could have the benefit of discovery already completed and documents already obtained on subpoena: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2005] FCA 112. As to costs, his Honour decided at ([5]) "(o)n a fairly fine balance" not to order solicitor-client costs because in any fresh proceeding the parties would have the benefit of the substantial work already carried out. His Honour was not able to reach a conclusion about the propriety of Cadbury's institution and maintenance of the proceeding, except for the procedural or interlocutory derelictions. These, his Honour considered (at [6]), should not attract a punitive order for costs to be taxed on the higher scale.
Case: Re Knowles [1984] VR 751 at 768-770
Outcome: cited
The rejection of tendered evidence, whether expert or otherwise, is an everyday feature of all litigation. Often there is room for argument, as there was in this case, as to the admissibility of evidence. It might even be negligent for counsel to fail to attempt to tender evidence where there is authority against its admission: Re Knowles [1984] VR 751 at 768-770. In itself, the tendering of evidence held to be inadmissible is not indicative of wrongful conduct which might warrant an order for indemnity costs.