mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Morris v C. W. Martin &amp; Sons Ltd [1966] 1 QB 716
Outcome: referred to
of the obligations of a bailee is to redeliver the goods to the bailor. The nature of the duty varies according to the circumstances in which and the purpose for which the goods are delivered to the bailee: Morris v C. W. Martin &amp; Sons Ltd [1966] 1 QB 716 at 731. In Morris v C. W. Martin , Diplock LJ at 732, and Salmon LJ at 738 observed that one of the common law duties imposed upon a bailee is not to intentionally convert the goods to his or her own use. Yet this is precisely what the Behong Agreement required Behong to do. It may be true that Behong was contractually bound not to resell the materials in their unscrapped form, but that does not undermine the proposition that the fundamental commercial purpose of the Behong Agreement, as exemplified in the terms to which I have referred, was for Behong to collect and scrap or destroy the materials. Nothing could be further from the concept of bailment. The evidence of the dealings between Behong and Messrs Fisher and Allam indicate knowledge on the part of the Tonita respondents that their purchases of the unscrapped materials may have amounted to a breach of contract. However, that is irrelevant to the claim for conversion. No claim of inducement of breach of contract was made.
Case: Motor Mart Limited v Webb [1958] NZLR 773
Outcome: referred to
as Turner J observed in Motor Mart Limited v Webb [1958] NZLR 773 at 784-785, it would be a mistake to conclude that the transaction of bailment is not capable of adaptation to modern commercial circumstances. Indeed, his Honour said: I decline to assume that, under the pressures and stresses of modern legal necessity, some new mutation may not burst into flower, of a quality to startle the author of the Institutes were he privileged to behold it. Nevertheless, the Behong Agreement cannot be such a mutation. This is evident from the nature of the obligations entailed by the relationship of bailment. The authorities go so far as to establish that a bailment does not necessarily impose upon a bailee the obligation of redelivering the identical object that was bailed: Motor Mart v Webb at 781; Harding v Commissioner of Inland Revenue [1977] 1 NZLR 337 at 340.
Case: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449
Outcome: referred to
authorities which were analysed by the Full Courts in arriving at the conclusion stated in the second proposition included, in particular, the decisions of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517. Fifth, where an allegation is to be proved from circumstantial evidence, it is sufficient if the circumstances raise a more probable inference in favour of the allegation. Where the allegation is a serious one, the inquiry is to take account of the requirements of s 140(2)(c) , and what was said by the High Court in Neat Holdings about the need for caution in making such a finding: Palmer v Dolman at [39], [47]. To the extent that the claims are based upon circumstantial evidence, they will not be made out unless I am satisfied that they have been proved on the balance of probabilities, taking due account of what was said in Neat Holdings. The Aristocrat companies claim that the respondents are liable for copyright infringement, either as joint tortfeasors or on the ground that one or other of them has authorised the copyright infringement carried out by the others. The legal principles applicable to each of these separate heads of liability have been considered in some detail by the authorities. I do not consider that there is any real dispute between the parties as to those principles, but I will refer to them briefly below.
Case: Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Outcome: referred to
the Court of Appeal of NSW has accepted that the balance of probabilities test stated in s 140 requires the Court to reach a level of actual persuasion: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] ; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262 at [136] . However, the learned editor of Odgers, Uniform Evidence Law (8 th ed, 2009) observes at [1.4.100] that: It is difficult to see how the proposition that "actual persuasion" is required can stand under [s 140 of] the Act [...].
Case: Palmer v Dolman [2005] NSWCA 361
Outcome: referred to
the standard of proof which is required in a civil case is the balance of probabilities, but the Court should not determine whether it is so satisfied until the final stage of the reasoning process, taking into account the matters referred to in s 140(2): Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at [110] and [139]; Palmer v Dolman [2005] NSWCA 361 at [40] - [41] . Fifth, where an allegation is to be proved from circumstantial evidence, it is sufficient if the circumstances raise a more probable inference in favour of the allegation. Where the allegation is a serious one, the inquiry is to take account of the requirements of s 140(2)(c) , and what was said by the High Court in Neat Holdings about the need for caution in making such a finding: Palmer v Dolman at [39], [47]. Sixth, it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .
Case: Papakosmas v the Queen [1999] HCA 37 ; (1999) 196 CLR 297
Outcome: referred to
Cobden's fourth and fifth points related to the respondents' argument under s 135 of the Evidence Act . In his fourth submission, Mr Cobden drew the Court's attention to the test of unfair prejudice under s 135 , as defined by Papakosmas v the Queen [1999] HCA 37 ; (1999) 196 CLR 297 at 325, which envisaged a danger that the fact finder may use the evidence on an improper, perhaps emotional, basis; that is on a basis logically unconnected with the issues in the case. Mr Cobden argued that the respondents had failed to clearly articulate the basis upon which s 135 had been invoked, and in any case, the evidence objected to did not meet the test set out in Papakosmas. Finally, Mr Cobden rejected the analogy drawn by the respondents between the role of the independent computer expert and that of the independent solicitor in the carrying out of Anton Piller orders. He argued that the independent computer expert is not an officer of the Court and is therefore not under the same obligations as the independent solicitor. He also referred to several Federal Court practice directions and practice notes in which the role of the independent solicitor is significantly more regulated than that of the independent computer expert. 9.5.5.1.3 ADMISSIBILITY OF MR MCKEMMISH'S EVIDENCE The view that I came to after hearing the submissions of the parties was that, whilst it is undesirable for a person who has occupied the role of an independent expert for the purpose of an Anton Piller order to then give evidence as an expert witness, I did not consider that the submissions that had been put before me demonstrated that it was an abuse of process. Moreover, the undesirability of Mr McKemmish giving evidence could have been pointed to at any time after 20 December 2007 but was not, either in correspondence between the parties or in directions hearings.
Case: Penfolds Wines Proprietary Limited v Elliott [1946] HCA 46 ; (1946) 74 CLR 204
Outcome: referred to
is a fundamental principle of the law of torts that to maintain an action for conversion, the plaintiff must have either actual possession of the goods or the immediate right to possession at the time of the conversion: Penfolds Wines Proprietary Limited v Elliott [1946] HCA 46 ; (1946) 74 CLR 204 at 226-227; Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 549; F.A. Trindade, P. Cane &amp; M. Lunney, The Law of Torts in Australia (4 th ed, 2007) at 209-210.
Case: Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537
Outcome: referred to
the standard of proof which is required in a civil case is the balance of probabilities, but the Court should not determine whether it is so satisfied until the final stage of the reasoning process, taking into account the matters referred to in s 140(2): Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at [110] and [139]; Palmer v Dolman [2005] NSWCA 361 at [40] - [41] . Second, although there is some difference in the authorities as to whether it is appropriate to describe the standard of proof under s 140 as the Briginshaw standard, the cases all recognise that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved: Qantas v Gama at [110] and [139]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at [30] - [36] . Fourth, the position stated by the Full Court of the Federal Court exposes a difference of views on the question of whether the trier of fact must feel "an actual persuasion." Weinberg, Bennett and Rares JJ accepted that the Court must be so persuaded in Communications and Allied Services Union v ACCC at [31]. But that observation was based upon the statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; [1938] 60 CLR 336 at 361-362. In Qantas v Gama at [123] and [139], Branson J (with whom French and Jacobson JJ expressed general agreement) considered that the Briginshaw test has been replaced by the provisions of s 140 , and should be avoided due to its tendency to mislead.
Case: Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
Outcome: referred to
determining whether an alleged "infringer" has the requisite knowledge under s 38 of the Copyright Act , regard may be had to the "knowledge, capacity and circumstances of the particular defendant": Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 91 per Burchett J; see also at 97 per Tamberlin J, at 104 per Lehane J. Raben Footwear was concerned with the construction and effect of ss 102 and 103 of the Copyright Act which contain the same element of knowledge as s 38 , namely "knew or ought reasonably to have known". Accordingly, the same approach may be adopted on this question in the present case. Mr Cobden's submission that knowledge could be inferred from Global's "pattern of trade" rested upon the fact that the Play King transaction was the twelfth in the list of 54 transactions identified by the Aristocrat companies. However, in my view, this submission must be rejected for the following reasons. Third, there was no evidence in the present case of the type which resulted in a finding of constructive knowledge in Raben Footwear . In that case, the importer made inquiries from the manufacturer as to whether all copyright conditions had been met but received only a guarded and limited assurance: see Raben Footwear at 92.
Case: Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517
Outcome: referred to
authorities which were analysed by the Full Courts in arriving at the conclusion stated in the second proposition included, in particular, the decisions of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517.
Case: Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231
Outcome: referred to
separate tests have been stated. The first is the " Performing Right Society test", namely whether the director "directed or procured" the company's infringement. The second is the " Mentmore test", that is whether the director or officer "makes the tortious act his own" by deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement: see the discussion of Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [123] ff. The third test was formulated by Finkelstein J in Root Quality at [146]. The test is that the director's conduct is such that: ... he was so personally involved in the commission of the unlawful act that it is just that he should be rendered liable.
Case: Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18 ; (2000) 200 CLR 121
Outcome: applied
the rule in Jones v Dunkel only applies where a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18 ; (2000) 200 CLR 121 at [51] ; J.D. Heydon, Cross on Evidence (7 th Aust ed, 2004) at [1215], pp 41-42.
Case: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262
Outcome: referred to
the Court of Appeal of NSW has accepted that the balance of probabilities test stated in s 140 requires the Court to reach a level of actual persuasion: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] ; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 ; (2000) 49 NSWLR 262 at [136] . However, the learned editor of Odgers, Uniform Evidence Law (8 th ed, 2009) observes at [1.4.100] that: It is difficult to see how the proposition that "actual persuasion" is required can stand under [s 140 of] the Act [...].
Case: Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852
Outcome: referred to
it was suggested in DAP Services at [34]ff that there may have been other bases upon which damages could have been assessed. These included the possibility of finding that Aristocrat had lost some proportion of the sales made by the infringing respondents: see Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [8] per Emmett J.
Case: S.W. Hart &amp; Co Proprietary Limited v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466
Outcome: applied
I have not been able to conduct a visual comparison of the infringing compliance plates with the Aristocrat companies' originals, the evidence is sufficient for me to infer that the test stated by the High Court in S.W. Hart &amp; Co Proprietary Limited v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472, 478 and 479 is satisfied. The Tonita respondents had prior access to the copyright works. From the material before me going to infringement of compliance plates, in particular the evidence of Mr Parsons, I infer the elements of resemblance, actual use and causal connection. The onus then passed to the Tonita respondents to rebut the inference of copying but they failed to discharge that onus: Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] UKHL 58 ; [2001] All ER 700 at 708-9.
Case: Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574
Outcome: referred to
J referred to Australian and English authority which support the abovementioned statement of principle including the decision of the High Court in Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574 and the seminal English case, The Koursk [1924] P 140.
Case: The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278
Outcome: referred to
it is sufficient if the circumstances give rise to a reasonable and definite inference; but if they produce conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture, the allegation is not proved: Palmer v Dolman at [35], [36], [41]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5; Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 at 358 and other High Court authorities cited in Palmer v Dolman at [36]; see also The Trustees of the Property of Cummins v Cummins [2006] HCA 6 ; (2006) 227 CLR 278 at [34] .
Case: Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1
Outcome: referred to
Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [135] , Tamberlin J pointed out that it follows from the remarks of Gummow J in WEA International that: ... there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient ... .
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1
Outcome: referred to
claim against the Tonita respondents is that they were engaged by the Global/Impact Joint Venture for reward, to supply services and to procure parts and equipment for the purposes of the joint venture and that they are "so personally involved in the commission of the unlawful act[s], that it is just that [they] should be rendered liable": Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] ; cf Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at [1] , [74], [161]. Kenny J said in Cooper at [161] that she agreed with the test stated by Finkelstein J. So did Wilcox J in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 ; (2005) 220 ALR 1 at [434] . He went on to add a qualification, that the person need not be a director of the company.
Case: University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1
Outcome: referred to
Cooper at [136], Kenny J observed that s 101(1A) of the Copyright Act (which corresponds to the current s 36(1A)) is premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1. Moorehouse is authority for the proposition that "authorisation" means "sanction, approve, countenance"; express or formal permission is not required: per Gibbs J at 12-13; per Jacobs J at 20-21. Gibbs J said at 13: ... a person who has under his control the means by which an infringement of copyright may be committed such as a photocopying machine and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use. Kenny J also referred in Cooper to the observations of Gummow J in WEA International Inc v Hanimex Corporation Limited (1987) 17 FCR 274 at 285-286. Gummow J there pointed to the broad concept of "authorisation" accepted by the High Court in Moorhouse.
Case: WEA International Inc v Hanimex Corporation Limited (1987) 17 FCR 274
Outcome: referred to
J also referred in Cooper to the observations of Gummow J in WEA International Inc v Hanimex Corporation Limited (1987) 17 FCR 274 at 285-286. Gummow J there pointed to the broad concept of "authorisation" accepted by the High Court in Moorhouse. As Gummow J explained in WEA International at 283, infringement of copyright statutes are considered tortious, so as to make applicable the common law principles of liability of joint tortfeasors. It is not sufficient to establish a claim of joint liability that two or more persons assisted or concurred in or contributed to a tortious act; what is required is that there be "some common design": WEA at 283. In Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [135] , Tamberlin J pointed out that it follows from the remarks of Gummow J in WEA International that: ... there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient ... . In WEA International at 283, Gummow J pointed out that where the infringer is a corporation, questions often arise as to the degree of involvement on the part of directors necessary for them to be rendered personally liable. He observed that this question is not answered by the principles which govern "authorisation" and joint tortfeasance. Rather, recourse is to be had to the authorities which explain the circumstances in which a director or officer will be personally liable for the torts of the corporation. It is those authorities which prompted Kenny J to say in Cooper at [160] that the law concerning the liability of directors and officers for corporate wrongdoing is unclear. As Kenny J said in Cooper at [161], no Full Court has settled which of the tests is correct. However, I do not need to consider the question because, in my view, it is essential to recognise that the debate in the authorities as to the test to be applied to the liability of directors or officers for the wrongs of the corporation is a different question from that which applies to the question of liability for "authorisation" or joint tortfeasance. This was what Gummow J pointed out in WEA International at 283. Subject to the observations I have made about Mr Channa, it seemed to me that the witnesses called by the Aristocrat companies were, generally speaking, truthful. They made concessions where appropriate and, apart from specific matters to which I have referred in the course of these reasons, I accept their evidence. The respondents suggested that Mr Juan Pablo Irarrazaval, the General Business Manager of Latin America for ATI, was not a witness of truth. Mr Irarrazaval's evidence dealt principally with the market for gaming machines, including second hand machines, in South America.