mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518
Outcome: considered
As I said in a previous judgment in this proceeding concerning the second respondent in Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518 at [1] : "There is a real issue in this proceeding whether the relevant employees did engage in industrial action. That is yet to be determined." 5 Adapting what follows at [1] in the previous judgment to the current circumstances: "All I am currently required to do is to assess the appropriate penalty, if any, to be imposed on [Maxim (Vic)] , on the basis of the agreed statement of facts advanced by it and the applicant, Mr Furlong." 6 Maxim (Vic) admits that it made payments to certain of its employees at a time when those employees were engaged in industrial action on 5 and 6 August 2003. Those payments totalled $2,056.83. 11 The facts and circumstances of this matter are not materially distinguishable from those referred to in the previous judgment in this proceeding, that is, Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518. As was the case with the contractor referred to in that judgment, the breaches of s 187AA and of the relevant agreement were inadvertent and unlikely to recur. No utility would ordinarily be served by imposing a penalty. However, the parties, operating at arms length and competently advised, consider that a penalty of $1,750 should be imposed. I see no good reason to depart from that agreement as the sum is not a significant one for the seventh respondent. I will impose the penalty for breach of the Act but not impose any additional penalty for breach of the certified agreement, in respect of which a declaration will be recorded. 12 For the sake of completeness, as I did in the previous judgment, I reiterate that in accepting that Maxim (Vic) breached the agreement I am not expressing any view about the conduct of the third respondent, the Union or any respondent other that Maxim (Vic).
Case: Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428
Outcome: followed
At the directions hearing at which this aspect of the proceeding was programmed, counsel for the third to sixth respondents formally submitted that judgment against Maxim (Vic) should not be given at this stage. The submission was only formally advanced given my ruling at [10] to [13] in the previous judgment, in which I accepted the approach of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. I still adhere to that approach. Therefore there is no reason to withhold judgment concerning Maxim (Vic). I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 14 June 2006 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Australian Government Solicitor Counsel for the Seventh Respondent: Mr J Twigg Solicitors for the Seventh Respondent: Giannokopoulos Solicitors Date of Hearing: 14 June 2006 Date of Judgment: 14 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/740.html
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1991) 170 CLR 321
Outcome: cited
The appellant argued that the use of the post-hearing submission as to the age of discovery of his sexuality was not probative of anything. He said that it was not evidence and that for the tribunal to have acted on it showed that the actual decision was based on considerations which were irrelevant or irrational, or on findings or inferences of fact which were not supported by some probative material or logical grounds and that, therefore, the decision constituted a jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1991) 170 CLR 321 at 366 per Deane J, and see also 358 per Mason CJ, with whom Brennan J agreed at 365. 18 If the appellant had made the statement in the post-hearing submission directly, the tribunal would have been entitled to act on it without any further reference to him and to discern the very inconsistency which it did. Unless there were a basis on which to conclude that the agent could not have made the submission on the appellant's behalf, I can see no basis on which it can be concluded that the tribunal was acting on material which was not probative. Why should the tribunal, it may be asked, have ignored the submission which the appellant was asking it to take into account in assessing his claim? And why should the tribunal have ignored material in that submission which could be treated as being an admission or a statement, of an evidentiary kind, in the sense embraced by s 424A of the Act? 22 Not everyone would have reasoned in the way the tribunal did. A want of logic by an administrative decision-maker in drawing an inference of fact does not amount in itself to an error of law. Nor was there anything in its reasons which amounted to an error of law constituting a jurisdictional error. As Tamberlin, Emmett and Weinberg JJ pointed out in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [22]-[29], illogical reasoning, of itself, does not constitute an error of law or jurisdictional error. Mason CJ said in Bond 170 CLR at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (His Honour's emphasis)
Case: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Outcome: cited
Not everyone would have reasoned in the way the tribunal did. A want of logic by an administrative decision-maker in drawing an inference of fact does not amount in itself to an error of law. Nor was there anything in its reasons which amounted to an error of law constituting a jurisdictional error. As Tamberlin, Emmett and Weinberg JJ pointed out in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [22]-[29], illogical reasoning, of itself, does not constitute an error of law or jurisdictional error. Mason CJ said in Bond 170 CLR at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (His Honour's emphasis)
Case: Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd (2003) 58 IPR 1
Outcome: cited
"Sign" is defined in s 6 to include a letter, word, name, device etc. Chinese characters can constitute a sign: see Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd (2003) 58 IPR 1. 8 Section 17 defines a trade mark as: "... a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person."
Case: Eastman Photographic Materials Company Limited v Comptroller General of Patents, Designs and Trademarks [1898] AC 571 at 580
Outcome: followed
The respondent submitted that the applicant has not made out a serious question to be tried for a number of reasons. The respondent first contended, correctly in my view, that there was no arguable case that he had used the Chinese characters in question as a trade mark. Counsel for the respondent referred to the well-known statement of Lord Herschell in Eastman Photographic Materials Company Limited v Comptroller General of Patents, Designs and Trademarks [1898] AC 571 at 580: "... it would obviously have been out of the question to permit a person by registering a trade-mark in respect of a particular class of goods to obtain a monopoly of the use of a word having reference to the character or quality of those goods. The vocabulary of the English language is common property: it belongs alike to all; and no one ought to be permitted to prevent the other members of the community from using for the purposes of description a word which has reference to the character or quality of goods." In my view, the characters in question are simply descriptive of the service the respondent provides, that is to say a professional driving school in Melbourne. Moreover, used in the context of the advertisements, the descriptive nature of the Chinese characters is emphasised by their use in conjunction with the "L" device which forms the distinctive part of the respondent's mark. The respondent has used characters which appropriately describe his business and, in addition, he has used a device which is quite different from the steering wheel device in the applicant's mark. 10 The respondent's second argument, which I also accept, was that s 122(1)(b)(i) of the Act applies. Section 122(1)(b)(i) provides that a person does not infringe a registered trademark when the person uses a sign in good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin or some other characteristic of services. While there were some assertions from the bar table regarding the respondent's use of information about the applicant's business allegedly acquired by the respondent while he was an employee, there was no evidence to that effect. In any event, the important issue for this case is whether the respondent's use of the sign was in good faith. Given that the words complained of in the respondents' mark are purely descriptive, as already explained, there is no reasonable basis on which to attribute any lack of good faith to the respondent in relation to the use of his mark that being the only relevant question for present purposes.
Case: Melbourne Chinese Press Pty Ltd v Australian Chinese Newspaper Pty Ltd [2004] FCAFC 201
Outcome: cited
Given my findings above, it is unnecessary to consider in any detail the further ground relied upon by the respondent, namely that the respondent's mark was not substantially identical with or deceptively similar to the applicant's mark. Counsel for the applicant referred to Melbourne Chinese Press Pty Ltd v Australian Chinese Newspaper Pty Ltd [2004] FCAFC 201 , a trade mark infringement case concerning the mastheads of competing Chinese language newspapers. At first instance, Conti J held that the respondent's masthead was deceptively similar to the applicant's mark and therefore constituted an infringement, a decision which was upheld by the Full Court. As was discussed in Melbourne Chinese Press at [41], the two marks are not to be compared side by side, and the marks must be considered in their entirety. Having regard to the distinctive devices used in the marks in conjunction with the purely descriptive Chinese characters, I am not satisfied there is an arguable case of deceptive similarity. 12 There is no evidence of any real damage to the applicant caused by the respondent's use of his mark. The applicant deposed: "The income earned from the driving school is my only source of income. Due to the infringement of my registered trademark by the respondent, I believe that I have lost income and I will continue to lose income if the respondent is not restrained from infringing my registered trade mark. I have learnt from many would be learner drivers that they thought that the respondent's business is also my business, or is associated with my business and hence they engaged him as their instructor." 13 The last sentence was objected to by counsel for the respondent. I did not uphold the objection, but because of its vagueness very little evidential weight can be attributed to it. Further, there is also some hardship that would occur to the respondent were the injunction to be granted as he would be required to register another business name.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: followed
High Court made it abundantly clear in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 that before an interlocutory injunction can be granted it is necessary to identify a substantive right which is to be determined at the trial and in respect of which final relief is sought. An interlocutory injunction, according to equitable principles, cannot be granted simply to preserve the status quo if no right is sought to be vindicated by final relief: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at 218 per Gleeson CJ. However, two of the judges in the majority in Lenah Game Meats made it clear that they were not concerned with "some special statutory jurisdiction" (per Gleeson CJ at 217; see also Gaudron J at 232) to grant injunctive relief.
Case: Karl Suleman Enterprizes Pty Ltd (In Liq) v Babanour (2004) 49 ACSR 612
Outcome: discussed
the investors may wish to preserve the status quo of the sale contract to see whether they may have some cause of action which might be brought by the liquidator in their name, it was not suggested that the sale contract is illegal as a result of having been entered into by participants in an unregistered managed investment scheme. There is clear authority to the contrary. In Karl Suleman Enterprizes Pty Ltd (In Liq) v Babanour (2004) 49 ACSR 612, the New South Wales Court of Appeal said at [51]: "The registration requirement for the operation of a managed investment scheme is for the protection of investors. The legislation does not expressly make an unregistered scheme unlawful. Rather it impugns the conduct of the entity responsible for registration by imposing a penal sanction for a contravention of the registration provisions. The members of an unregistered scheme are protected by the provisions whereby the scheme may be compulsorily wound up. There is nothing, therefore, in the scheme of the legislation whereby an implication of an illegality would arise, nor is there anything that points to a legislative intention that contracts entered into as part of an unregistered scheme are illegal." See also Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410; Mier v F N Management Pty Ltd (2005) 56 ACSR 93 at 96.
Case: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410
Outcome: cited
the investors may wish to preserve the status quo of the sale contract to see whether they may have some cause of action which might be brought by the liquidator in their name, it was not suggested that the sale contract is illegal as a result of having been entered into by participants in an unregistered managed investment scheme. There is clear authority to the contrary. In Karl Suleman Enterprizes Pty Ltd (In Liq) v Babanour (2004) 49 ACSR 612, the New South Wales Court of Appeal said at [51]: "The registration requirement for the operation of a managed investment scheme is for the protection of investors. The legislation does not expressly make an unregistered scheme unlawful. Rather it impugns the conduct of the entity responsible for registration by imposing a penal sanction for a contravention of the registration provisions. The members of an unregistered scheme are protected by the provisions whereby the scheme may be compulsorily wound up. There is nothing, therefore, in the scheme of the legislation whereby an implication of an illegality would arise, nor is there anything that points to a legislative intention that contracts entered into as part of an unregistered scheme are illegal." See also Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410; Mier v F N Management Pty Ltd (2005) 56 ACSR 93 at 96.
Case: Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46
Outcome: followed
scope of the definition of a "managed investment scheme" has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J approved and adopted the description and explanation of a "managed investment scheme and its components" in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. I agree with and adopt those descriptions and explanations.
Case: Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339
Outcome: followed
scope of the definition of a "managed investment scheme" has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J approved and adopted the description and explanation of a "managed investment scheme and its components" in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. I agree with and adopt those descriptions and explanations.
Case: Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561
Outcome: followed
scope of the definition of a "managed investment scheme" has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J approved and adopted the description and explanation of a "managed investment scheme and its components" in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. I agree with and adopt those descriptions and explanations.
Case: Australian Securities and Investments Commission v ABC Fund Managers Ltd (No 3) [2001] VSC 397
Outcome: considered
Australian Securities and Investments Commission v ABC Fund Managers Ltd (No 3) [2001] VSC 397 , Warren J granted a permanent injunction restraining a party from dealing with the funds of schemes which were wound up pursuant to s 601EE of the Act and in respect of which a liquidator was appointed. There was no discussion by Warren J as to the basis for the grant of the injunction. The jurisdiction was assumed.
Case: Australian Securities and Investments Commission v Landy DFK Securities Ltd [2002] FCA 1056 ; (2002) 123 FCR 548
Outcome: distinguished
referred to Australian Securities and Investments Commission v Landy DFK Securities Ltd [2002] FCA 1056 ; (2002) 123 FCR 548 in which a managed investment scheme was ordered to be wound up pursuant to s 601EE of the Act and the Court appointed liquidators of the scheme. The liquidators filed a motion in the winding up proceeding seeking an order for possession of a property owned by the scheme and an injunction restraining the occupant of the property, who claimed to be a lessee under a lease and entitled to purchase the property under an option in the lease, from remaining in possession of the property. The lessee claimed that the Court had no jurisdiction to grant the relief sought in the proceeding and that the Court did not have jurisdiction or power to make a substantive order resolving a dispute between the liquidators and third parties on the liquidators' interlocutory motion in the winding up proceeding.
Case: Re Stacks Managed Investments Ltd (2005) 54 ACSR 466
Outcome: considered
Re Stacks Managed Investments Ltd (2005) 54 ACSR 466, White J expressed some doubt about the range of orders which could be made under s 601EE(2) , but he did not express any conclusion on the scope of the Court's power under that section. He agreed (at 475) with the observations of Barrett J in Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (supra) that: "the power to make orders for the winding up, must extend to settling or prescribing any aspect or element of the basis of winding up or the winding-up process which cannot be supplied from other sources. Section 601EE(2) empowers the court to fashion the winding-up process." But White J appeared to accept that s 601EE(2) was a source of new powers not otherwise found in other provisions in the Act relating to the winding up of corporations or other entities. His Honour said at 478: "It [s 601NF(2)] authorises the making of directions of a kind which would be made in an administration suit for the purpose of settling the entitlements of members. But in my view, and notwithstanding the authorities under s 601EE(2) , the subsection does not authorise the court to confer additional powers upon a responsible entity to which third parties would be made subject, or to interfere with the rights which third parties would otherwise enjoy. The fact that the power is to give directions indicates that it is one to direct the responsible entity in how to perform its functions and obligations, not that it be the source of new powers. In this respect it differs from s 601EE(2)."
Case: Hamilton v Piggott Wood &amp; Baker [2003] FCA 1055
Outcome: discussed
Hamilton v Piggott Wood &amp; Baker [2003] FCA 1055 , Heerey J made an order entitling a liquidator of an unregistered managed investment scheme to bring proceedings in his name as liquidator of the scheme. Heerey J was faced with the potential problem of two partners in a firm of solicitors who were administering the scheme being the plaintiffs as well as partners in the defendant firm. Heerey J observed at [8] that "the provision for the winding up of an investment scheme cannot always be neatly fitted into the analogy of the winding up of a company", an observation with which I agree. His Honour noted that the scheme itself was not a legal entity and could not be a plaintiff so he gave the liquidator leave to bring the proceeding in his name as liquidator of the scheme. His Honour did not consider the nature of the structure of the scheme. However, his Honour's conclusion is not inconsistent with the conclusion I have reached which is predicated on an understanding of the contractual foundation for the schemes. What is sought is an enabling order. In my view it is desirable that there be no doubt as to the ability of the liquidator to bring proceedings on behalf of the investors who constituted the syndicates which were the subject of the partnership agreement between Kastabon and Novena. All the proposed order will do procedurally is ensure that no challenge can be made to any proceeding brought by the liquidator on the ground that the entities which were the constituent and contracting entities which brought the schemes into existence are not properly parties to any such proceeding. I will therefore make an order in respect of each proceeding and each scheme in the following terms: Colin McIntosh Nicol is entitled to bring in the name 'Colin McIntosh Nicol as Liquidator of the Claremont Terrace Scheme' being the scheme defined in the schedule to the order made on 26 September 2005, any proceeding (as he may be advised) on behalf of the scheme and/or Kastabon Pty Ltd and/or Novena Holdings Pty Ltd (notwithstanding that it has been deregistered) against any person whether or not a party to this proceeding.