mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZLOC v Minister for Immigration and Citizenship [2008] FMCA 930
Outcome: referred to
This is an appeal against a judgment of a Federal Magistrate delivered on 11 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 2 October 2007: see SZLOC v Minister for Immigration and Citizenship [2008] FMCA 930. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant. 2 The appellant is a citizen of India, from the district of Kerala, who entered Australia on 10 April 2007. On 19 April 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 31 May 2007. On 27 June 2007 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed fear of persecution on the basis of his political opinion. The appellant claimed that he was involved in the Student Federation of India (SFI), the student wing of the Communist Party (Marxist) ("CP(M)") for a number of years. He claimed that the SFI comes under the Democratic Youth Federation of India which is part of the CP(M). The appellant claimed that he faced serious harassment on a number of occasions from the Akhil Bharatiya Vidyarthi Parishad which is the student wing of the Bharatiya Janata Party. The appellant provided the Tribunal with two membership "cards" for the SFI. He claimed that he erected posters, assisted with doorknocking campaigns for the SFI and stood for a student representative election while in Year 8 at high school. 4 The appellant claimed that he and/or his family had been attacked in December 1995 and in 2006. He said that in the 2006 attack his right leg was injured and showed the Tribunal a scar on his knee. He provided the Tribunal with a doctor's certificate which referred to "traumatic injuries both legs from 5.2 06 to 25.2 06." 5 The Tribunal did not accept that the appellant was a witness of truth. The Tribunal found that the appellant's claims that he was a member of the SFI were unsupported. The Tribunal said that it could not rely on the membership documents because the documents were incomplete. The appellant had presented two consecutive receipts for memberships covering one period and he gave evidence that the party membership documents were not originals but had been completed by persons assisting him with his protection visa application.
Case: Lahiri v Universal Music &amp; Video Distribution Inc 513 Supp 2d 1172 (2007)
Outcome: cited
Mr Geller noted that Itar-Tass has been applied by the District Court for the Central District of California, Western Division: Lahiri v Universal Music &amp; Video Distribution Inc 513 Supp 2d 1172 (2007).
Case: Bumper Corporation v Commissioner of Police of Metropolis [1991] 1 WLR 1362
Outcome: cited
A court does not conduct its own researches into foreign law. But if an expert witness refers to foreign statutes, decisions or texts, the court is entitled to look at them as part of the evidence. It does not however go on a roving inquiry of its own. However, if the evidence of experts conflicts as to the effect of foreign sources, the court must look at the sources in order to decide between the conflicting opinions. See Dicey, Morris and Collins on The Conflict of Laws 14 th ed (2006) at 262-266; Cross on Evidence 6 th Aust ed (2000) at 1218-1220; Bumper Corporation v Commissioner of Police of Metropolis [1991] 1 WLR 1362 at 1368-1371. 50 I am forced by my own consideration of the material placed before me by Mr Geller and Mr Reichman to prefer the opinion of the latter. There are in my opinion two related deficiencies in Mr Geller's reasoning. The first concerns Art 14bis(2)(a) of the Berne Convention. Although Mr Geller quotes that provision, he does not to my satisfaction explain why it does not cover the present case. The explanation he offers appears in the paragraph beginning on page 7 and ending on page 8 of his report. In view of its length I will not set it out. I am unable to discern how Mr Geller's centrifugal/centripetal and false conflicts discussion enables him to put Art 14bis(2)(a) aside. 51 The World Intellectual Property Organisation's Guide to the Berne Convention at 85-86 (which is quoted by Mr Reichman and is exhibited to his report), commenting on Art 14bis(2)(a) says: Here the Convention provides expressly that the ownership of copyright of the film is a matter for the country where protection is claimed. This may be the maker in his own right, as under the 'film copyright' system, or the maker by reason of a legal assignment, or it may be the various artistic contributors to the film. National legislation is free to adopt any of the systems. The reference to the law of the country where protection is claimed makes it clear that ownership depends on the law of the country of importation, whoever may be considered the owner of the copyright in the country of origin of the film. For example, if protection is claimed in the United Kingdom, it is the British law which governs ownership; if in France it is the law of that country. I accept Mr Reichman's opinion that Art 14bis(2)(a) is a special choice of law rule applicable to motion pictures. 52 That is also the view of the authors of the leading text on the Berne Convention: Ricketson and Ginsburg, International Copyright and Neighbouring Rights The Berne Convention and Beyond 2 nd ed (2006). In volume 2 at 20.12 they say that in Article 14bis(2)(a) the Convention "both addresses questions of ownership and designates the applicable law". At 20.36 they describe the Article as providing "a choice of law rule regarding initial ownership of cinematographic works".
Case: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197
Outcome: applied
The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 , Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345. (a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction. (b) A stay is only granted if the Australian court is a clearly inappropriate forum. (c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country. (d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression. (e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties' places of residence, the location of witnesses and the relative ease of access to sources of proof. (f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise. (g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted. (h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding. (i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive. (j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party.
Case: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: applied
The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 , Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345. (a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction. (b) A stay is only granted if the Australian court is a clearly inappropriate forum. (c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country. (d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression. (e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties' places of residence, the location of witnesses and the relative ease of access to sources of proof. (f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise. (g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted. (h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding. (i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive. (j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party.
Case: Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329
Outcome: cited
Although Mr Hahnheuser has pleaded reliance on s 45DD(3) of the Trade Practices Act in his amended defence, there is a question whether he is entitled to rely on that provision when he has not participated in the trial of the proceeding. In other words, there is a question as to whether the onus of proof of the elements of s 45DD(3) falls on the person seeking to rely on it, or whether the party contending that a contravention of s 45DB(1) has occurred carries the onus of proving that the elements of s 45DD(3) did not exist. The resolution of this question must lie in ascertaining the intention of the legislature from the provisions of the legislation. Often, the fact that a provision is expressed as an exception to a general provision, whether or not it appears in the same section as the general provision, will be a significant indicator that the onus lies on the party seeking to take advantage of the exception. This is not a conclusive rule. See Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519 and Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 335-336.
Case: Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318
Outcome: cited
So far as the evidence goes, the acts of the persons accompanying Mr Hahnheuser were not identical to those of Mr Hahnheuser. He appears to have been the one mixing the ham and water, and the one placing the ham and tainted water in places from which the sheep would be expected to feed. Mr Hahnheuser was the one who gave the television interviews. The evidence does not disclose that any of the other persons did any of these things. There may be cases in which different people perform different acts, all directed towards achieving the same end, but the differences are so great as to prevent the conduct of the different persons being described accurately as conduct "in concert". See the discussion in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 at 328-329 per Gray J. Nevertheless, in the present case, the extent of the collaboration is sufficient to support a finding that Mr Hahnheuser and at least one of the persons with him were engaging in conduct in concert. An integral part of the end that they sought to achieve was that there should be proof of the adulteration of the sheep feed, so that the shipment of the consignment of sheep could not go ahead and there would be media coverage, informing the public of the frustration of the attempt to ship those sheep to the Middle East. Thus, recording the videos was an essential part of the conduct. Mr Hahnheuser was assisted in making his point in some of the interviews by the other person holding signs so that they would be visible to the television camera. The result is that at least one other person was actively assisting Mr Hahnheuser to achieve the end that he sought, and was doing so by practical means calculated to complement the acts of Mr Hahnheuser. This fact justifies the finding that there were two persons acting in concert to perform the conduct complained of, and that one of them was Mr Hahnheuser.
Case: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425
Outcome: cited
Mr Hahnheuser was the principal actor in the three episodes that made up the conduct. He was the one mixing the ham and water in the bathroom, putting the mixture into the water container, distributing the ham and tainted water in the feedlot and giving the interviews. His name appears on the Press Alert. He did not act alone, however. At least one other person was present in the bathroom at the motel, to operate the video camera. At least two other persons were present with Mr Hahnheuser in the feedlot, one operating the video camera and one shown in the video walking with Mr Hahnheuser, wearing a tee-shirt similar to that worn by Mr Hahnheuser. In some of the television interviews, there are two people shown standing behind Mr Hahnheuser, holding up signs shaped like animals, with slogans written on them. The person whose name was given as Diana Simpson made the booking for the motel room used, and was present at the time. The person whose name was given as Mark Pearson paid for the room. The name Mark Pearson also appears on the Press Alert. In the course of his interviews, Mr Hahnheuser made admissions that there were other persons with him in the feedlot. He described what had happened as an operation that was carefully designed and planned, involving detailed investigations in advance and reconnaissance over a number of days, and as being "highly organised". It is clear that the other persons involved were willing participants; there is nothing to suggest that they were coerced, so as to prevent them from being taken to have acted in concert with Mr Hahnheuser. See Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 61-63. The activities of Mr Hahnheuser and the other persons with him had the element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert to be made. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433 per Keely and Pincus JJ.
Case: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452
Outcome: cited
What s 45DB(1) of the Trade Practices Act requires is that trade or commerce be prevented or substantially hindered. It appears to be accepted generally that "hindering" in this context must be given a broad meaning, so that it conveys in any way affecting to an appreciable extent the ease of the usual way of performing the activity concerned. The authorities are referred to in Australian Builders' Labourers' Federated Union of Workers &#8722; Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ, especially the passage quoted there from the judgment of Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 45-46. There is no suggestion in the present case that the ease with which Rural Export ensured the supply of feed to the feedlot was affected in a negative way to any extent. It simply had to do more of what it would normally have been required to do, during a longer period than it would have been required to do it. It is possible that Rural Export's capacity to do other things in conducting its trade or commerce might have been affected by the need to spend extra time ordering and directing the delivery of extra feed. There is no evidence to this effect, however. It is said that Rural Export had to spend more money on feed than it otherwise would have in respect of this consignment of sheep. On that basis, it appears to me that the only way in which it could be said that Rural Export's trade or commerce has been hindered would be if it were to be accepted that being obliged to spend more money and to carry out the actions necessary to order and procure the delivery of further feed, in order for Rural Export to discharge its responsibilities with respect to the particular consignment of sheep, amounts to having its trade or commerce hindered. This may require an expansion of the concept of hindering beyond that with which the authorities seem to deal. As the authorities stand, I am unable to say that the trade or commerce of Rural Export was hindered, whether substantially or otherwise.
Case: Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307
Outcome: followed
The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act , among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour's judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. In Australian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said: On a broad reading of s 45DB , conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas.
Case: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32
Outcome: cited
What s 45DB(1) of the Trade Practices Act requires is that trade or commerce be prevented or substantially hindered. It appears to be accepted generally that "hindering" in this context must be given a broad meaning, so that it conveys in any way affecting to an appreciable extent the ease of the usual way of performing the activity concerned. The authorities are referred to in Australian Builders' Labourers' Federated Union of Workers &#8722; Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ, especially the passage quoted there from the judgment of Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 45-46. There is no suggestion in the present case that the ease with which Rural Export ensured the supply of feed to the feedlot was affected in a negative way to any extent. It simply had to do more of what it would normally have been required to do, during a longer period than it would have been required to do it. It is possible that Rural Export's capacity to do other things in conducting its trade or commerce might have been affected by the need to spend extra time ordering and directing the delivery of extra feed. There is no evidence to this effect, however. It is said that Rural Export had to spend more money on feed than it otherwise would have in respect of this consignment of sheep. On that basis, it appears to me that the only way in which it could be said that Rural Export's trade or commerce has been hindered would be if it were to be accepted that being obliged to spend more money and to carry out the actions necessary to order and procure the delivery of further feed, in order for Rural Export to discharge its responsibilities with respect to the particular consignment of sheep, amounts to having its trade or commerce hindered. This may require an expansion of the concept of hindering beyond that with which the authorities seem to deal. As the authorities stand, I am unable to say that the trade or commerce of Rural Export was hindered, whether substantially or otherwise.