mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
In the absence of particularisation it is difficult to deal with this ground of appeal. Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors. With respect to legal errors, other than the failure of Driver FM to deal with one of the appellant's grounds before his Honour - with which I have already dealt in this judgment - no legal errors are demonstrated by the appellant. Third ground of appeal
Case: SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634
Outcome: cited
The principles articulated by the Full Court in Randhawa 52 FCR 437 were recently affirmed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In that case at pages 638-639 Gummow, Hayne and Crennan JJ agreed with the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426 where his Lordship said: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason (at [7]).
Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Outcome: considered
The Full Court held in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [54] that where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it is inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of addressing the issue of possible fabrication. In this case, however with respect to a document purporting to be a copy of a First Information Report, referring to a crime by the appellant allegedly occurring after he had left Pakistan, and which the Tribunal concluded was not a reliable source of evidence, it is clear from the Tribunal decision that the Tribunal had questioned the appellant in relation to the document and expressed doubt at the hearing as to its provenance. In my view, there has been no absence of procedural fairness provided to the appellant in relation to that document or any claims he may have with respect to that document. 38 In the circumstances the appropriate order is that the appeal should be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 November 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: R Foreman Solicitor for the Respondent: Sparke Helmore Date of Hearing: 14 November 2007 Date of Judgment: 15 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1747.html
Case: Harris v Commissioner of Taxation [2006] QSC 108
Outcome: cited
turn, the Commissioner seeks an order pursuant to s 588FGA(2) of the Corporations Act against a director of Seminars International, Mr Roger Jeffrey Davies (Mr Davies). Mr Davies has become the Second Defendant in the proceedings, pursuant to interlocutory process issued against him at the behest of the Commissioner. I note that such a practice was the subject of approval by Mackenzie J in Harris v Commissioner of Taxation [2006] QSC 108 at [25] . Earlier this year I made orders providing for substituted service in respect of Mr Davies. The material read this morning on behalf of the Commissioner satisfies me that he has been served in accordance with those orders. Mr Davies has not appeared today.
Case: Hillig v Commissioner of Taxation [2000] QSC 403 ; (2001) 2 QR 147
Outcome: applied
evidence before me establishes that, of the sum of $125,471.40 previously referred to, the sum of $68,544.94 was applied by the Commissioner to Pay As You Go (PAYG) withholding liabilities of the company to the Commonwealth under subdivision 16B of Pt 2 - 5 in Sch 1 to the Taxation Administration Act 1953 (Cth). The evidence further establishes that Mr Davies was a director of the company at the time when the payments were made. It is submitted, correctly, in my opinion, that the loss suffered by the Commissioner is twofold, namely: (a) the amount of the Court's repayment order in favour of the liquidator, insofar as that relates to PAYG withholding liabilities, in this case $68,544.94 (see Hillig v Commissioner of Taxation [2000] QSC 403 ; (2001) 2 QR 147) ; and (b) any legal costs and interest that the Commissioner has required to pay to the liquidator in consequence of the voidable preference claim brought against the Commissioner (see Commissioner of Taxation v Sims [2008] NSWCA 298 at [34] ).
Case: Commissioner of Taxation v Sims [2008] NSWCA 298
Outcome: applied
evidence before me establishes that, of the sum of $125,471.40 previously referred to, the sum of $68,544.94 was applied by the Commissioner to Pay As You Go (PAYG) withholding liabilities of the company to the Commonwealth under subdivision 16B of Pt 2 - 5 in Sch 1 to the Taxation Administration Act 1953 (Cth). The evidence further establishes that Mr Davies was a director of the company at the time when the payments were made. It is submitted, correctly, in my opinion, that the loss suffered by the Commissioner is twofold, namely: (a) the amount of the Court's repayment order in favour of the liquidator, insofar as that relates to PAYG withholding liabilities, in this case $68,544.94 (see Hillig v Commissioner of Taxation [2000] QSC 403 ; (2001) 2 QR 147) ; and (b) any legal costs and interest that the Commissioner has required to pay to the liquidator in consequence of the voidable preference claim brought against the Commissioner (see Commissioner of Taxation v Sims [2008] NSWCA 298 at [34] ).
Case: Abela v Giew (1964) 81 WN (Part 1) (NSW) 344
Outcome: applied
general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345.
Case: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40
Outcome: applied
overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. Order 13 rule 2(2) of the Rules makes explicit reference to this principle: 'All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.'
Case: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 
Outcome: applied
starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128.
Case: Ketterman v Hansel Properties Ltd [1987] AC 189
Outcome: cited
is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths. The proposed amendments in or to paras 5A, 13, 33, 34 and 37 relate to Spirits' claim against Diageo based on alleged misleading and deceptive conduct in relation to a beverage referred to as the Ruski RTD. Diageo opposes Spirits' amendments to paras 13 and 33 (and related paras 34 and 37) of the proposed FASC on the basis that Spirits have not pleaded material facts in support of the allegations in paras 13 and 33 (and related paras 34 and 37).
Case: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Outcome: applied
starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128.
Case: North-Western Salt Company Ltd v Electrolytic Alkali Company Ltd [1913] 3 KB 422
Outcome: cited
claims that paras 47C, 47D and 48A to 48C plead the law relating to the implication of terms to give business efficacy to a contract in support of the allegation that there are certain implied terms in the First Agreement (when read together with or amended by the Supplementary Agreements, First SPI Assignment and Second SPI Assignment). However, Diageo submits that it is trite that a statement of claim must only plead material facts and not evidence or legal propositions: O 11 r 2; North-Western Salt Company Ltd v Electrolytic Alkali Company Ltd [1913] 3 KB 422 at 425. Accordingly, Diageo submitted that leave should not be granted with respect to the amendments in paras 47C, 47D and 48A to 48C. They amount to statements of legal propositions and are embarrassing. For this reason, no leave should be given to amend paras 48 and 49 because Spirits have not pleaded any material facts in support of the amendments. When pressed, Senior Counsel for Spirits submitted that the opening words of para 48: 'By reason of the matters pleaded above ...', is a reference to paras 38 to 47D of the proposed FASC, and that para 47D is a pleading of fact. I tend to agree with the latter submission although it might be more accurate to describe para 47D as a pleading of mixed fact and law, as it would be to describe a number of the other pleadings from para 38 onwards.
Case: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: applied
starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128.
Case: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: applied
starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394; Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128.
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633
Outcome: cited
basis of Diageo's opposition to a grant of leave with respect to the proposed amendments in [3] is that Spirits have failed to plead material facts in support of their amended causes of action and that the proposed amendments are embarrassing because they do not enable Diageo to understand and plead to the new causes of action. Diageo submits that a pleading must state with particular clarity the factual basis upon which a foundation of a cause of action under Pt V of the Trade Practices Act 1976 (Cth) ('the TPA') is based: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 at 40,977. I am not sure that I fully comprehend what lies behind the submission that the proposed amendments are embarrassing to Diageo. Diageo's submission that it is unable to understand and plead a response flies in the face of a plea in denial; such a pleading may turn out to be embarrassing, but any embarrassment in those circumstances will be at the feet of Spirits' articulation of their pleading and not at the feet of Diageo's response. I do not view such a prospect as a basis for necessarily withholding leave to amend; in certain circumstances it may be. The real issue on the motion is whether such circumstances exist in the present case. Spirits plead no cause of action and make no claim for relief against Federal Treasury Enterprise (FKP) Sojuzplodoimport ('FKPS'), the party nominally titled 'the Second Respondent'. FKPS was joined as the second respondent to this proceeding by order of Gyles J in December 2004, for the purpose only of enabling FKPS to file and serve a cross-claim against Spirits. This proceeding was commenced by Spirits against Diageo by way of application and statement of claim filed on 7 December 2004. On 2 December 2005 Spirits filed an Amended Application and Amended Statement of Claim ('ASC') with the leave of the Court. Diageo consented to the grant of leave in that instance.
Case: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 , 
Outcome: cited
In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth). 124 An "artistic work" includes a "drawing ... whether [the drawing] is of artistic quality or not": s 10(1) of the Act . Each of the Krueger Sketch and the Krueger Drawings falls within the inclusive definition of a drawing, as each "is a two-dimensional work in which shapes and images are depicted by lines, often without colouring" ( Woodtree Pty Ltd v Zheng (2008) 74 IPR 484 , at [25]), performing a visual rather than "semiotic" function: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 at 662. The Krueger Sketch and the Krueger Drawings are, therefore, artistic works.
Case: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 , 
Outcome: applied
As Megarry J put it, "there can be no breach of confidence in revealing to others something which is already common knowledge" ( Coco, at 47). However, the standard that must be met to establish the necessary quality of confidence is low. For example, confidentiality can attach to information that is not entirely novel or original, provided the information was not commonly or publicly known at the time of the alleged breach. Confidentiality can also attach to a design that draws on already known information to create a new solution to a problem. In British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at 193, Lord Tomlin observed that there may well be inventive merit in combining in one combination, integers which are themselves old or the subject of common knowledge. In fact, that which is required to transform common knowledge into a matter of commercial confidence may involve little more than "work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be achieved by somebody who goes through the same process": Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 per Gowans J.
Case: Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154 , 
Outcome: cited
In any event, there is no support for the proposition that even if Krueger failed in its infringement claim, then by definition Vawdrey's cross-claim would have succeeded. Even assuming that the threats contained in the letters were in fact unjustified, Vawdrey would not be entitled as of right to a declaration to that effect: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 at 107-108; see also Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 at [39] - [42] ; Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154.
Case: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99 , 
Outcome: cited
In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth).
Case: Barrett Property v Metricon Homes (2008) 74 IPR 52 , 
Outcome: applied
Moreover, because Camerons authorised Vawdrey to do the acts that constituted an infringement of Krueger's copyright in the Subsequent Krueger Drawings, Camerons is also liable for that infringement: see s 36 of the Copyright Act and Barrett Property v Metricon Homes (2008) 74 IPR 52 at 99. 137 No separate argument was directed to the development of Krueger's claims under the TPA. It is unnecessary therefore to say anything further about these claims. In any event, it was not suggested that if Krueger were to succeed in its claims under the TPA that it would be entitled to any different relief. 138 By order dated 16 February 2005, the issues of liability and quantum were split for trial, with quantum yet to be heard. 145 Krueger also submitted that "Tindal and Cameron were personally involved in the sense that they authorised or aided and abetted the wrongful conduct complained of". The balance of Krueger's written submission was no more than a reference to the decision of Gilmour J in Barrett . As against Tindal and Cameron, the only relief sought in the Application was a declaration that they were "involved in the ... contraventions by" Camerons and Vawdrey. 146 None of the oral submissions addressed this issue except to make a passing reference to "an interesting debate in the court at the moment about the test for personal liability of someone who is said to direct or procure tort[i]ous conduct of a corporation". 147 No party submitted that even if Tindal and / or Cameron were personally liable, Krueger would have sought or obtained different monetary relief. Moreover, I can see no other potential utility in granting the declaration sought by Krueger (and none was suggested). In these circumstances, it is neither necessary nor appropriate to consider this issue further.
Case: British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 , 
Outcome: applied
As Megarry J put it, "there can be no breach of confidence in revealing to others something which is already common knowledge" ( Coco, at 47). However, the standard that must be met to establish the necessary quality of confidence is low. For example, confidentiality can attach to information that is not entirely novel or original, provided the information was not commonly or publicly known at the time of the alleged breach. Confidentiality can also attach to a design that draws on already known information to create a new solution to a problem. In British Celanese Ltd v Courtaulds Ltd (1935) 52 RPC 171 at 193, Lord Tomlin observed that there may well be inventive merit in combining in one combination, integers which are themselves old or the subject of common knowledge. In fact, that which is required to transform common knowledge into a matter of commercial confidence may involve little more than "work done by the maker upon materials which may be available for the use of anybody, so as to achieve a result which can only be achieved by somebody who goes through the same process": Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 per Gowans J.
Case: Desktop Marketing Systems Pty Ltd v Telstra [2002] FCAFC 112 ; (2002) 119 FCR 491 , 
Outcome: cited
In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth).
Case: Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D), 
Outcome: cited
Just as copyright protects only a form of expression and not an idea itself, it is the originality of the expression , and not the originality of the ideas encompassed in the work, that is assessed: see eg, Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D) per Farwell D at 109-112 in relation to the same requirement of originality for the Copyright Act 1911 (UK). Originality requires no notion of novelty or invention. If the form of expression represents independent application of knowledge, judgment, skill or labour, that will be sufficient: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.