mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: cited
There was once a time when an appeal to a Full Court of this Court was conceived to be an appeal in a strict sense than rather than an appeal by way of rehearing, the root authority for the former proposition being Duralla Pty Ltd v Plant [1984] FCA 146 ; (1984) 2 FCR 342. That early conception is now regarded as erroneous: Minister for Immigration v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 , at 533, [75], 544, [120] fn (98); Branir Pty Ltd v Owston Nominees (No 2 ) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at 434-435, [20] . Even so, that is not a licence to conduct a case in the appellate jurisdiction of this Court as if there had been no exercise of an original jurisdiction or as if an appellant had not chosen to conduct his case in a particular way and on particular grounds in that jurisdiction. The conduct of the Appellant's case on appeal exhibited a tendency, by no means unique in appeals in matters arising under the Migration Act , to treat an appeal to this Court as if it were an exercise in the direct supervision by judicial review of an Administrative Tribunal, rather than an appeal from a judicial decision. Subject to s 75(v) of the Constitution and to exceptions in the Act which are not presently material, the judicial review role in respect of a decision of the Tribunal is consigned by s 476 of the Migration Act to the Federal Magistrates Court. It is that court which is invested with the relevant original jurisdiction.
Case: Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: considered
I have emphasised the words "is satisfied" in the definition of "spouse" because they indicate that one of the "facts" upon the existence of which the Minister's power to grant this type of visa is conditioned is a state of Ministerial "satisfaction" in respect of specified criteria. The following observations of Gummow J in Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 651, [130] - [131] are therefore apposite: "The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. ... A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution ." (internal footnote references omitted) 19 To this Gummow J added in Eshetu , supra at 654, [137]: "This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way." 20 Later in his judgement in Eshetu , supra at 656-657, [145] Gummow J stated: "Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce. I would prefer the scrutiny of the written statement provided under s 430 by a criterion of "reasonableness review". This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds."
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: considered
A "satisfaction" based administrative decision is amenable to judicial review on one or more of the bases described by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached." 20 Later in his judgement in Eshetu , supra at 656-657, [145] Gummow J stated: "Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce. I would prefer the scrutiny of the written statement provided under s 430 by a criterion of "reasonableness review". This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds."
Case: Tolibao Cortes v Minister for Immigration and Multicultural Affairs [2001] FCA 1183
Outcome: cited
There is no want of logicality in the Tribunal's reasons. Those reasons discharge the statutory obligation with respect to reasons cast on the tribunal by s 368 of the Migration Act , as the learned Magistrate correctly concluded. The Tribunal's absence of "satisfaction" was based on evidence, not, as the Appellant contended, suspicion, cf Tolibao Cortes v Minister for Immigration and Multicultural Affairs [2001] FCA 1183. Appeal grounds 3, 4 and 6 fail.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405
Outcome: applied
The Appellant contends that the Tribunal should have referred in its reasons to receipts, letters, statutory declarations made by the Appellant, his spouse and their friends, utility bills, photographs and two home videos. The law does not require this. The Tribunal is not obliged "to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal": Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 416, [65] . Appeal ground 2 fails. 25 Prior to reaching its decision the Tribunal sent to the Appellant a letter dated 9 August 2006 in which attention was drawn to and comment invited upon there being little substantive evidence in 2002 of a then continuing relationship, to the notes of field visits (copies of which were enclosed) to the claimed matrimonial residence which it was said raised doubts as to whether the Appellant and his wife resided together or were in a spousal relationship, to the Appellant's inconsistencies in response at interview as mentioned in the Ministerial delegate's reasons, to an absence of spousal identification on tax returns, to the Appellant's having bills sent to his aunt's address, to his wife's having purchased a house in her own name and to the Appellant's residing regularly at his aunt's house. 26 The delegate had noted, inter alia, of the Appellant's responses at interview, "the sponsor was emphatic that she did not want children" whereas, in the record of a previous hearing in the Tribunal, she had been recorded as saying that she and the Appellant, "love each other and plan to have children".
Case: Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1
Outcome: cited
Section 65A provides an exemption from the application of s 52. That is to say, conduct which would otherwise contravene s 52 does not do so if it is conduct to which s 65A applies. The section provides no exemption for a media organisation which is an accessory to a contravention which is not covered by s 65A. So, if a news organisation aids, abets or induces somebody who is not covered by s 65A to make statements in trade or commerce which are misleading or deceptive and contravene s 52 or one of the State Fair Trading Acts , then the news organisation may be "involved in" that contravention within the meaning of s 75B of the TPA or its equivalent under the relevant Fair Trading Act . That is not to say that a newspaper or other media outlet would be held liable simply for reporting the fact of a statement by a third party which is of itself misleading or deceptive. It is not necessary to consider the conditions of accessorial liability in such a case because that is not the case now before the Court. The proposition remains that there is no protection in s 65A or its Fair Trading Act equivalents against accessorial liability for misleading or deceptive conduct: Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1. 33 Section 65A exempts from the application of s 52 "a prescribed publication of matter by a prescribed information provider". The party claiming the exemption must be a prescribed information provider. This means a person "who carries on a business of providing information". The term includes but is not limited to licence holders under the Broadcasting Services Act 1992 or who provide broadcasting services under a class licence under that Act. The word "information" is not defined. Its ordinary meaning relevantly includes "knowledge or facts communicated about a particular subject, event etc.; intelligence, news". It also extends to "an item of news": Shorter Oxford English Dictionary (5 th ed, Oxford University Press, 2002). 34 There are no doubt many activities which could involve carrying on a business of providing information. Many, if not most professions and trades which involve the provision of information would no doubt be covered. The limitations on the application of s 65A are not to be found in the definition of prescribed information provider, but rather in subs 65A(1)(a) and (b).
Case: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR
Outcome: cited
Section 65A of the TPA was enacted in 1984 as a response to concerns that news media could be liable for incorrect news reports under the misleading or deceptive conduct provisions of the TPA. This followed the decisions of the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. In Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453, Toohey J refused to dismiss proceedings against the newspaper for misleading or deceptive conduct in relation to a story it carried about services and conditions aboard a cruise ship, The Dalamacija. Subsequently he made an award of damages against the newspaper: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549.
Case: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549
Outcome: cited
Section 65A of the TPA was enacted in 1984 as a response to concerns that news media could be liable for incorrect news reports under the misleading or deceptive conduct provisions of the TPA. This followed the decisions of the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. In Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453, Toohey J refused to dismiss proceedings against the newspaper for misleading or deceptive conduct in relation to a story it carried about services and conditions aboard a cruise ship, The Dalamacija. Subsequently he made an award of damages against the newspaper: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Outcome: cited
Section 65A of the TPA was enacted in 1984 as a response to concerns that news media could be liable for incorrect news reports under the misleading or deceptive conduct provisions of the TPA. This followed the decisions of the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. In Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453, Toohey J refused to dismiss proceedings against the newspaper for misleading or deceptive conduct in relation to a story it carried about services and conditions aboard a cruise ship, The Dalamacija. Subsequently he made an award of damages against the newspaper: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549.
Case: Infabrics Ltd v Jaytex Ltd [1981] 1 All ER 1057
Outcome: cited
Counsel for Mr Bond and Lesotho Diamond submitted that in relation to copyright law "publishing" and "publication" are "fundamental expressions meaning making available to the public" and that "it would take a great deal of contextual constraint to force them into a narrower and special meaning": Infabrics Ltd v Jaytex Ltd [1981] 1 All ER 1057 at 1061. It was argued that, because s 65A exempts those who fall within it from, amongst other things, the consequences of misleading or deceptive conduct, there is no reason why the Court should adopt an expansive interpretation of the word "publication". It should be interpreted in accordance with its ordinary natural meaning. In my opinion, however, the ordinary and natural meaning of "publication" includes transmission of a news article to a media organisation for publication to the world at large.
Case: Krahe v Freeman (1988) ATPR 40-871
Outcome: cited
Where more than one construction is open on the statute, that construction should be adopted which is consistent with its purpose. The purpose of s 65A was clearly stated in the Second Reading Speech. To exclude from the exemption the supply of information by freelance journalists to media organisations is to partially defeat that purpose. The communication of news articles to media organisations by freelance journalists is so plainly within the intended purpose of the section that a construction covering it should be adopted provided that construction is open. In my opinion, as stated above, such communication is within the natural and ordinary meaning of publication as publication to the world at large. And even if transmission of an article by a freelance journalist to the editor of a media organisation were to be construed as merely one-to-one communication, the concept of such communication as publication is familiar in the area of defamation law. In Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 Isaacs J said (at 363): To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle. In Krahe v Freeman (1988) ATPR 40-871 at 49,430, Rogers J, in a passage cited with approval by Levine J in Carlovers [2000] NSWSC 947 at [44] , said: ... the Fair Trading Act was never meant to be a substitute for actions for defamation. The Parliament has made that clear by the enactment of s 60. In my respectful view, the Court, should be astute not to allow utilisation for a purpose for which it was never intended.
Case: Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360
Outcome: cited
Section 65A of the TPA was enacted in 1984 as a response to concerns that news media could be liable for incorrect news reports under the misleading or deceptive conduct provisions of the TPA. This followed the decisions of the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. In Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453, Toohey J refused to dismiss proceedings against the newspaper for misleading or deceptive conduct in relation to a story it carried about services and conditions aboard a cruise ship, The Dalamacija. Subsequently he made an award of damages against the newspaper: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549.
Case: Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384
Outcome: cited
Section 65A of the TPA was enacted in 1984 as a response to concerns that news media could be liable for incorrect news reports under the misleading or deceptive conduct provisions of the TPA. This followed the decisions of the Full Court of the Federal Court in Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. In Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453, Toohey J refused to dismiss proceedings against the newspaper for misleading or deceptive conduct in relation to a story it carried about services and conditions aboard a cruise ship, The Dalamacija. Subsequently he made an award of damages against the newspaper: Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549.
Case: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331
Outcome: cited
Where more than one construction is open on the statute, that construction should be adopted which is consistent with its purpose. The purpose of s 65A was clearly stated in the Second Reading Speech. To exclude from the exemption the supply of information by freelance journalists to media organisations is to partially defeat that purpose. The communication of news articles to media organisations by freelance journalists is so plainly within the intended purpose of the section that a construction covering it should be adopted provided that construction is open. In my opinion, as stated above, such communication is within the natural and ordinary meaning of publication as publication to the world at large. And even if transmission of an article by a freelance journalist to the editor of a media organisation were to be construed as merely one-to-one communication, the concept of such communication as publication is familiar in the area of defamation law. In Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 Isaacs J said (at 363): To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle. In Krahe v Freeman (1988) ATPR 40-871 at 49,430, Rogers J, in a passage cited with approval by Levine J in Carlovers [2000] NSWSC 947 at [44] , said: ... the Fair Trading Act was never meant to be a substitute for actions for defamation. The Parliament has made that clear by the enactment of s 60. In my respectful view, the Court, should be astute not to allow utilisation for a purpose for which it was never intended.
Case: Yang v American International Assurance Company (Australia) Ltd (No 2) [2008] FCA 493
Outcome: cited
It is appropriate that Cytel pay the costs of and incidental to the notice of motion. Peoplebank points to the fact that the notice of motion was filed some time after the service of the order and after the acknowledgment of liability to pay those costs, as referred to above. As Peoplebank points out, at no time have any objections to the amount sought been notified or formulated. If it had a genuine concern as to the quantification of costs, Cytel had every opportunity to bring an application to set aside the certificate of taxation of which it acknowledged receipt. Cytel did not do so. Peoplebank has been forced to incur unnecessary costs in respect of an obligation to pay costs previously acknowledged. The attempt to avoid that payment and to extend the litigation is without merit and the burden of the solicitor-client costs of the motion should not be borne by Peoplebank ( Yang v American International Assurance Company (Australia) Ltd (No 2) [2008] FCA 493). 32 It is appropriate that Cytel pay Peoplebank's costs of the notice of motion on an indemnity basis. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 21 April 2008 Counsel for the Applicant: B DeBuse Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: P R Garling SC, G Lucarelli Solicitor for the Respondent: Thomson Playford Date of Hearing: 9 April 2008 Date of Judgment: 22 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/518.html
Case: Angoves Pty Ltd v Johnson (1982) 43 ALR 349
Outcome: cited
Section 7(4) defines 'use' of a trade mark not only as the application of the mark to the product itself, but also the application of the mark to other items relating to the product, such as packaging, invoices, correspondence and advertisements: see Thunderbird Products Corporation v Thunderbird Marine Products Pty Ltd [1974] HCA 51 ; (1974) 131 CLR 592 at 600 (per Jacobs J); Angoves Pty Ltd v Johnson (1982) 43 ALR 349 at 359-360 (per Deane J); Davison M, Johnston K and Kennedy P, Shanahan's Australian Law of Trade Marks &amp; Passing Off (3 rd ed, Lawbook Co., 2003) at [2.145] and [2.230]. Sections 9(1)(b)(i) , 9 (1)(c)(ii) and 9 (2) of the Act provide that a trade mark used on an invoice or attached to either the packaging in which the product is stored or transported is to be taken as being applied in relation to the goods. Accordingly, the use of the Sample Packaging or invoices displaying the mark in respect of the Sample Units is 'use' of a trade mark within s 7 of the Act .
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
In response to these submissions, Dynamic Supplies denies that it made representations alleged. Dynamic Supplies relies on Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at 605 (per Gleeson CJ, Hayne and Heydon JJ), and submits that, when selling the trap purchase products, it did no more than communicate what was represented by Brother, without adopting or endorsing it. It was a mere conduit in the distribution process. Dynamic Supplies also reiterates that Brother's Australian trade marks were not registered in relation to the Sample Units, and that Dynamic Supplies did not 'use' the trade marks. 86 In light of my findings above at [52], [54] and [68], Dynamic Supplies' submissions on non-use and non-registration do not succeed in relation to the trade practices claim. 87 The remaining issue is whether Dynamic Supplies merely communicated a representation made by Brother or whether it represented that the products were in some way connected with Brother when they were not.