mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389
Outcome: applied
Neither the Trade Practices Act provisions, nor the tort of passing off, require, as an essential element of proof, evidence of actual misleading of consumers. Nevertheless such evidence is admissible and in appropriate circumstances can be "very material" and of "some importance": Royal Warrant Holders' Association v Edward Deane &amp; Beal Ltd [1912] 1 Ch 10 at 14-15, cited with approval by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389. In the present case, it would be useful to have had evidence such as: "I usually buy Cadbury chocolate. I know their chocolate from the purple wrappings and advertising. I saw some purple wrapped chocolate but when I got to the checkout I saw it was Darrell Lea's. But I was in a hurry so I bought it anyway." or "I saw Darrell Lea using purple so I thought they must have been taken over by Cadbury." 91 The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, 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] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.
Case: BP plc v Woolworths Ltd (2005) 212 ALR 79
Outcome: cited
An essential part of Cadbury's case is that the shade of purple it uses, considered in isolation, distinguishes Cadbury from its competitors. In other words, the colour purple in the context of chocolate has a secondary meaning as an identifier of Cadbury chocolate products. Reference was made to a trade mark case BP plc v Woolworths Ltd (2005) 212 ALR 79 where Finkelstein J held that a shade of green could be registered as a trade mark for BP because customers identified BP service stations by the colour green alone (the Full Court has recently granted leave to appeal: Woolworths Ltd v BP plc [2006] FCAFC 5).
Case: Woolworths Ltd v BP plc [2006] FCAFC 52
Outcome: cited
An essential part of Cadbury's case is that the shade of purple it uses, considered in isolation, distinguishes Cadbury from its competitors. In other words, the colour purple in the context of chocolate has a secondary meaning as an identifier of Cadbury chocolate products. Reference was made to a trade mark case BP plc v Woolworths Ltd (2005) 212 ALR 79 where Finkelstein J held that a shade of green could be registered as a trade mark for BP because customers identified BP service stations by the colour green alone (the Full Court has recently granted leave to appeal: Woolworths Ltd v BP plc [2006] FCAFC 5).
Case: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738
Outcome: followed
The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, 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] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.
Case: Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527
Outcome: followed
The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, 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] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.
Case: Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20]
Outcome: followed
The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, 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] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363
Outcome: cited
The likely behaviour of shoppers or consumers in relation to goods normally sold to the general public is a "jury question", that is to say it is a question for the tribunal of fact, whether a jury or, as in the present case, a judge sitting alone: General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, cited by Gummow J in Interlego at 387-388, 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] and the cases discussed in my earlier ruling Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 208
Outcome: cited
Although s 52 provides the public with a wider protection from deception than the common law of passing off ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 208), there is a considerable overlap between the two causes of action. In the present case neither side sought to draw any significant distinction between them. Realistically there is no basis on which Cadbury could succeed under the Trade Practices Act but fail on passing off, or vice versa.
Case: Campomar v Sociedad Limitadav Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [105]
Outcome: applied
Since it is common ground that Darrell Lea products in fact have no sponsorship, approval or connection with Cadbury or its products, and that Darrell Lea's business is entirely unconnected with that of Cadbury, the critical issues in this case relate to the representations that, in all the circumstances, Darrell Lea by its conduct would convey to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of chocolate products: Campomar v Sociedad Limitadav Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [105] . 119 In focusing on the representation alleged to be made by Darrell Lea it is important to keep in mind the consistent rejection by courts of the highest authority of any generalized notion of unfair trading. Attention must be confined to the statutory causes of action and the common law tort of passing off. (The present case is not concerned with the unconscionability sections of the Trade Practices Act .) In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508 Dixon J said that in "British jurisdictions" courts of equity have not "thrown at the protection of an injunction around all intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labor. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization." That passage was endorsed by the High Court in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 and Campomar at [4].
Case: Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508
Outcome: applied
In focusing on the representation alleged to be made by Darrell Lea it is important to keep in mind the consistent rejection by courts of the highest authority of any generalized notion of unfair trading. Attention must be confined to the statutory causes of action and the common law tort of passing off. (The present case is not concerned with the unconscionability sections of the Trade Practices Act .) In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508 Dixon J said that in "British jurisdictions" courts of equity have not "thrown at the protection of an injunction around all intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labor. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization." That passage was endorsed by the High Court in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 and Campomar at [4].
Case: Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445
Outcome: applied
In focusing on the representation alleged to be made by Darrell Lea it is important to keep in mind the consistent rejection by courts of the highest authority of any generalized notion of unfair trading. Attention must be confined to the statutory causes of action and the common law tort of passing off. (The present case is not concerned with the unconscionability sections of the Trade Practices Act .) In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 579 at 508 Dixon J said that in "British jurisdictions" courts of equity have not "thrown at the protection of an injunction around all intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labor. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization." That passage was endorsed by the High Court in Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 445 and Campomar at [4].
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425, Gleeson CJ, Gaudron and Gummow JJ, after adverting to the test of apprehended bias in curial proceedings, said at [28]: 'Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.' 21 A reading of the transcript does not disclose any statement or conduct that might give rise to a suggestion that might give rise to apprehended bias. There is nothing in the Tribunal's reasons that could lead a reasonable lay observer to apprehend that the Tribunal might not bring an impartial mind to the determination of the matter before it. 22 It cannot be said that simply because the Tribunal rejected the appellant's account a fair-minded lay person might think that the Tribunal might not have brought an impartial mind to the hearing. That submission, if accepted, would make decision making impossible.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
Section 420 is facultative in that it absolves the Tribunal from some of the constraints imposed on courts of law: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628, 635, 642-644, 659, and 664-668. Section 420 does not impose a duty upon the Tribunal which, if breached, would involve jurisdictional error. 26 Ground number 5 appears to be a restatement of ground number 3, together with the further complaint that the Tribunal was actually biased. No complaint of that kind was made to the Federal Magistrate. No particulars of the complaint had been made on this appeal. 27 I am unable to discern any fact or circumstance which could lead to the conclusion that the Tribunal was actually biased.
Case: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
Section 422B provides that Division 4 of Part VII of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. To that end, the Tribunal is obliged to comply with Division 4. Section 422B has been recently considered by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214. In that case, the Court was called upon to construe s 51A which is relevantly in the same terms as s 422B. The Court held that the intention of the legislature was to provide a comprehensive procedural code for procedural fairness and at the same time to exclude the common law natural justice hearing rule, although the bias rule is not excluded. The legislature intended to reverse the result of the decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 where the majority held that the then wording of the Act did not exclude the common law rules of natural justice. There is, on the strength of that authority, no obligation on the decision maker to provide procedural fairness except in accordance with s 422B. 33 In this case, there is no suggestion that the Tribunal did not comply with s 422B except insofar as it is complained that the Tribunal did not comply with s 424A. 34 In paragraph 4 of the grounds the appellant asserts that the Tribunal failed to act in accordance with s 424A of the Act in that the Tribunal did not provide to the applicant particulars of the information that indicated that forged or fraudulently obtained documents are readily available in Bangladesh. 35 That ground was raised in the application for review by the Magistrate and abandoned before the Magistrate.
Case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559
Outcome: cited
There was no obligation to provide the appellant with the information referred to because it was not information specifically about the applicant or another person but was information about a class of person of which the applicant is a member: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: cited
There was no obligation to provide the appellant with the information referred to because it was not information specifically about the applicant or another person but was information about a class of person of which the applicant is a member: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: cited
There was no obligation to provide the appellant with the information referred to because it was not information specifically about the applicant or another person but was information about a class of person of which the applicant is a member: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: cited
The first contention may be accepted but is itself irrelevant: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27. The relevant application in s 424(3)(b) is the application for review. 50 His contention that he did not provide the July 1996 declaration for the purpose of the application must be rejected. The July 1996 declaration was provided in response to the s 424A letter received from the Tribunal. While the applicant explained that in some respects the July 1996 declaration was not accurate, it was still provided to the Tribunal for the purpose of the application. 51 Ground 6 of the written submissions claims that the Tribunal made a jurisdictional error in that it ignored relevant material and/or failed to take into account a relevant consideration.
Case: Freeman v National Australia Bank Ltd [2006] FCAFC 67
Outcome: cited
His Honour then referred to Freeman v National Australia Bank Ltd [2006] FCAFC 67 , and earlier cases which the Full Court there approved, and summarised their effect at [52] as follows: "in determining whether particular proceedings are in fact vexatious, a court may take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. The Full Court also noted that the expression 'habitually and persistently' implies more than 'frequently', and suggests a degree of stubbornness on the part of the person in question. The element 'without any reasonable ground' is of course to be determined objectively. It is immaterial that the person may believe in the justice of his or her argument, and may not understand that the argument has been authoritatively rejected." His Honour considered those observations applicable to s 42B(1)(b). 5 His Honour concluded at [54] as follows: "The Tribunal was entitled to have regard to [the appellant's] persistence, over many years, in seeking to have set aside the 4 November 1999 decision. It was entitled to have regard to his entire course of dealings in relation to social security benefits since his accident in 1991, and the fact that his latest foray before it involved an argument that could, and should, have been addressed years earlier. In those circumstances, I can see no error in the Tribunal's having concluded that a limited direction of the kind given was warranted." 6 The respondent has applied for security for costs in the sum of $10,000. Apart from recounting the lengthy history of the matter already recorded by Justice Weinberg, the respondent's solicitor also noted various costs orders made against the applicant, none of which has been complied with. To the extent they have been taxed, they total $30,855.20. Other costs orders are yet to be taxed. 7 A bankruptcy notice has issued against the appellant in the sum of $30,855.20. He did not pay the amount of the debt or make arrangements to the creditor's satisfaction within the time stipulated in the notice.
Case: Dranichnikov v Centrelink [2002] FCA 1622
Outcome: applied
A single judge may determine an application for security for costs in respect of an appeal: Dranichnikov v Centrelink [2002] FCA 1622 ( Dranichnikov ). 9 The appellant did not appear on the application for security. I was told by the respondent's solicitor that the appellant had informed him that he was unable to attend because he was unwell. The appellant also said that his daughter, who usually assisted him in court, was also unable to attend. There was no other evidence of illness, and the appellant did not ask for an adjournment. 10 As the history of the various proceedings makes clear, the matter before the Tribunal had already been the subject of a series of decisions made internally by Centrelink officers, the SSAT, the Tribunal, the Federal Magistrates Court, this Court and the High Court. 12 The appellant's prospects of success on the appeal are a relevant consideration on any application for security: Dranichnikov at [20]. As Bowen CJ said in J &amp; M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, that is especially so in the case of an appeal, where the appellant has had his day in court. The matters the appellant wishes to raise on the appeal have already been decided against him. As appears from Dranichnikov at [23], that is a consideration pointing to the appropriateness of an order for security. The appellant's appeal is in my view without merit. There is nothing to suggest any error in the decision under appeal.
Case: Cowell v Taylor (1885) 31 Ch D 34
Outcome: applied
The appellant has had his day in court on the frivolous and vexatious issue before Weinberg J. In Cowell v Taylor (1885) 31 Ch D 34 at 38 Bowen LJ said: "The general view is that poverty is no bar to a litigant .... There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another." See also Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Tait v Bindal People [2002] FCA 322.
Case: Ciappina v Ciappina (1983) 70 FLR 287
Outcome: cited
The appellant has had his day in court on the frivolous and vexatious issue before Weinberg J. In Cowell v Taylor (1885) 31 Ch D 34 at 38 Bowen LJ said: "The general view is that poverty is no bar to a litigant .... There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another." See also Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Tait v Bindal People [2002] FCA 322.
Case: Tait v Bindal People [2002] FCA 322
Outcome: cited
The appellant has had his day in court on the frivolous and vexatious issue before Weinberg J. In Cowell v Taylor (1885) 31 Ch D 34 at 38 Bowen LJ said: "The general view is that poverty is no bar to a litigant .... There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another." See also Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Tait v Bindal People [2002] FCA 322.