mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The Tribunal accepted the appellant's claims but found on the basis of independent country information, and the appellant's own evidence, that his fears of further harm amounting to persecution for reason of his race in Indonesia were not well founded. The Tribunal's findings were open for the reasons it provided. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13] ; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [81] , [84]. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] .
Case: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
The Tribunal accepted the appellant's claims but found on the basis of independent country information, and the appellant's own evidence, that his fears of further harm amounting to persecution for reason of his race in Indonesia were not well founded. The Tribunal's findings were open for the reasons it provided. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13] ; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [81] , [84]. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] .
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: cited
The Tribunal accepted the appellant's claims but found on the basis of independent country information, and the appellant's own evidence, that his fears of further harm amounting to persecution for reason of his race in Indonesia were not well founded. The Tribunal's findings were open for the reasons it provided. The choice and interpretation of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13] ; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [81] , [84]. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . 22 As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Outcome: cited
As regards to the first ground, the Federal Magistrate correctly noted that country information falls within s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572 at [64] - [74] , [112]-[138]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] - [30] ; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11] - [16] . His Honour also correctly noted that procedural fairness did not apply to the Tribunal because of s 422B of the Act: see Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [66] ; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] ; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [85] . Finally, his Honour noted that the Tribunal had referred to the same country information as was in the delegate's decision, so there could be no breach of procedural fairness in any event. For these reasons, his Honour correctly rejected the first ground.
Case: Bateman v Slatyer (1987) 71 ALR 553
Outcome: cited
The advertisements were not a mere reporting of the study. Unilever did not expressly hold itself out as having itself conducted the market research but it did present the market research as capable of generalisation to all Holiday Skin users; it did not qualify the variants used and it represented that the "7 out of 10" general preference was a preference for the tanning attributes of the products. By presenting the preference claim including the elucidator in this manner, Unilever conveyed the impression that the study provided a basis for the representations ( Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88). A statement of opinion cannot be regarded as false or misleading or as misleading and deceptive simply because it is incorrect ( Global Sportsman at 88; Bateman v Slatyer (1987) 71 ALR 553 at 559). However, in this case, as in RAIA at 175, it is implicit in the statement of the comparison that Unilever had ascertained that the facts justified the opinion it presented.
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
The more specialised the report or the more remote from the corporation's area of business, the easier it will be to establish that the corporation is merely passing on the information "for what it's worth". In Harkins v Butcher [2002] NSWCA 237 ; [2005] 55 NSWLR 558, for example, the New South Wales Court of Appeal found that an agent who distributed a brochure incorporating a copy of a survey diagram to purchasers was not liable for a contravention of s 52 on the basis that ' the recipients would know that the agents did not hold themselves out as professional surveyors, and had not carried out the survey themselves ' (at [47]). The Court of Appeal's decision was affirmed by a majority of the High Court, who had regard to the nature of the parties, the character of the transaction and the contents of the brochure itself in deciding that the agent ' did no more than communicate what the vendor was representing, without adopting it or endorsing it ' ( Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [40] ).
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719
Outcome: cited
It is appropriate to consider each advertisement, as viewed by a consumer, in its entirety, taking account of content and presentation and also the circumstances in which it was published ( Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd [2006] ATPR 42-106 at [24]). The message conveyed by the advertisements is for the Court to determine ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 ).
Case: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: applied
The question for the Court is whether reasonably minded members of the class of consumers to whom each advertisement is directed would take from it the representation which is alleged: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [103] . 18 By its amended statement of claim, Johnson alleges that the representations in each advertisement are: (a) that 7 out of 10 users of Holiday Skin preferred Summer Glow to Holiday Skin for its tanning attributes ('the first representation'); (b) that 7 out of 10 users of Holiday Skin preferred Summer Glow to Holiday Skin, with respect to each of the four respective product variants (Fair to Normal and Normal to Darker) ('the second representation'); (c) that 7 out of 10 users of Holiday Skin preferred Summer Glow to Holiday Skin ('the third representation'); and (d) that Summer Glow is the best tanning body lotion available ('the fourth representation'). 19 The first and second representations are said to raise for determination the construction of the advertisements. The third and fourth representations raise the validity of the market research. 70 Where the persons to whom the conducted is directed are not identified individuals, but members of a class to which the conduct is directed in a general sense, it is necessary to isolate a representative member of that class ( Campomar at [103]). The question then is whether a misconception is likely to arise on the part of that representative consumer from the conduct alleged ( Campomar at [103]); Astrazeneca at [34]). For there to be a contravention of s 52 , the ordinary or reasonable representee must be shown to labour under some erroneous assumption ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Campomar at [104]). The question is whether any misconceptions or deceptions alleged to arise from the advertisements are properly to be attributed to the ordinary or reasonable members of the class of the public towards whom the conduct has been directed ( Campomar at [104] [105]; Astrazeneca at [37]). 114 A contravention of s 52 may occur even when a corporation is acting reasonably and honestly ( Campomar at [103] citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). A corporation will not be liable for merely relaying false information when it is clear that the corporation does not adopt the information ( Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666). However, the fact that a corporation acts honestly and reasonably and does not intend to mislead or deceive does not necessarily absolve it from liability ( Parkdale at 197; Yorke ). It is a matter of fact in each case. Unilever submits that the reference to the "use test" in the elucidator would lead the consumer to understand that it had been carried out bona fide by a research house and that Unilever relied upon it. That representation was true.
Case: Gardam v George Wills &amp; Co Ltd (1988) 82 ALR 415
Outcome: cited
It is the case that the study was a specialised report. It can not be said, however, that the study was remote from Unilever's business. Unilever is engaged in the sale of consumer products to the public and conducts advertising to sell those products. It was not suggested that Unilever had no knowledge or understanding of market surveys. Indeed, Unilever issued sophisticated instructions to Colmar Brunton and indicated in clear terms the result it wished to achieve. It cannot be said that Unilever in any way disclaimed a belief in the truth or falsity of the comparison or the study on which it was based or was merely ' passing it on for what it is worth ' ( Yorke at 666). To the contrary, the results of the study were conveyed to the public as part of an integrated advertising campaign. In the circumstances, Unilever adopted them; it was not a ' mere conduit ' ( Gardam v George Wills &amp; Co Ltd (1988) 82 ALR 415 at 427).
Case: Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629
Outcome: cited
The preference claim is qualified by the elucidator. However, there can be no doubt that Unilever intended to communicate superiority. This is not a case of "mere puffery" ( Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 at [44]). That asserted superiority was in terms of performance attributes, rather than other attributes such as fragrance. While Mr Kibble may have intended the testing to be of ' the performance of the product and its sensory appeal (skin feel and fragrance)' (emphasis added), the advertisement made no reference to fragrance and little or no reference to sensory, in contrast to tanning performance, appeal. 40 It follows that I accept Johnson's submission that the message communicated by the commercial is that 7 out of 10 users of Holiday Skin preferred Summer Glow to Holiday Skin for its tanning attributes. The first representation was made in the television advertisement. 41 The print advertisement states that Summer Glow ' combines rich body lotion with a hint of self tanning agents ' and includes in its list of the product's attributes ' everyday body moisturiser ' and ' gradually builds a beautiful light tan '. This places greater emphasis than does the television advertisement on the moisturising capacity of the product. 76 Comparative advertising does not create any presumption with respect to a breach of the Act ( Energizer at [20]). However, as Heerey J pointed out in Energizer , the more actual comparison is used, the more potential there is for error and half-truth (at [20]). The factual assertions must be ' not untrue, or misleading half-truths ' (at [22]). Lindgren J discussed at [34] the comparator to which the consumer would understand the advertisement to be making reference. In that case, it was conceded that, if the comparator to which the consumer would understand the advertisement was referring was all Energizer batteries rather than the one particular battery the subject of comparison, the advertisement was misleading or deceptive. 77 Unilever's reliance on the failure by Johnson to establish that a different preference would have been expressed had all four variants been tested by the study is ill-founded. The fact is that the study simply did not include the two variants of Holiday Skin or compare them to both variants of Summer Glow. The reasonable consumer would have understood, in the absence of qualification, that the user preference was found to exist across all variants, or at the least, to a comparison of each comparable variant, when no such preference had been expressed in the "use test".
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Outcome: cited
The advertisements were not a mere reporting of the study. Unilever did not expressly hold itself out as having itself conducted the market research but it did present the market research as capable of generalisation to all Holiday Skin users; it did not qualify the variants used and it represented that the "7 out of 10" general preference was a preference for the tanning attributes of the products. By presenting the preference claim including the elucidator in this manner, Unilever conveyed the impression that the study provided a basis for the representations ( Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88). A statement of opinion cannot be regarded as false or misleading or as misleading and deceptive simply because it is incorrect ( Global Sportsman at 88; Bateman v Slatyer (1987) 71 ALR 553 at 559). However, in this case, as in RAIA at 175, it is implicit in the statement of the comparison that Unilever had ascertained that the facts justified the opinion it presented.