mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition &amp; Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801
Outcome: cited
power to make a declaration is a discretionary one and the basis upon which it should be exercised is conveniently summarised by Kenny J in Australian Competition &amp; Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363 at [200] [201]. In Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 , Sheppard J held that the concern of the Act with the public interest supported the view that the Court may, in appropriate cases, exercise its power to grant the declaratory relief to mark its disapproval of particular conduct engaged in contravention of the Act: [1993] FCA 83 ; [1993] 41 FCR 89 at 100 see also 106 per Foster J and 107 per Hill J; Australian Competition &amp; Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801 at [34] per Carr J; Australian Competition &amp; Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840 at [18] per Lee J. In the circumstances, the ACCC submitted that the Court should make the declaratory relief sought in paras 1 9 of the amended application, particularly given the important public interest element involved and also having regard to the fact that the ACCC stands apart from other litigants in that its functions include the furtherance of those public interests. I agree.
Case: Australian Competition &amp; Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363
Outcome: considered
power to make a declaration is a discretionary one and the basis upon which it should be exercised is conveniently summarised by Kenny J in Australian Competition &amp; Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363 at [200] [201]. In Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 , Sheppard J held that the concern of the Act with the public interest supported the view that the Court may, in appropriate cases, exercise its power to grant the declaratory relief to mark its disapproval of particular conduct engaged in contravention of the Act: [1993] FCA 83 ; [1993] 41 FCR 89 at 100 see also 106 per Foster J and 107 per Hill J; Australian Competition &amp; Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801 at [34] per Carr J; Australian Competition &amp; Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840 at [18] per Lee J. In the circumstances, the ACCC submitted that the Court should make the declaratory relief sought in paras 1 9 of the amended application, particularly given the important public interest element involved and also having regard to the fact that the ACCC stands apart from other litigants in that its functions include the furtherance of those public interests. I agree.
Case: Australian Competition &amp; Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840
Outcome: cited
power to make a declaration is a discretionary one and the basis upon which it should be exercised is conveniently summarised by Kenny J in Australian Competition &amp; Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363 at [200] [201]. In Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 , Sheppard J held that the concern of the Act with the public interest supported the view that the Court may, in appropriate cases, exercise its power to grant the declaratory relief to mark its disapproval of particular conduct engaged in contravention of the Act: [1993] FCA 83 ; [1993] 41 FCR 89 at 100 see also 106 per Foster J and 107 per Hill J; Australian Competition &amp; Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801 at [34] per Carr J; Australian Competition &amp; Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840 at [18] per Lee J. In the circumstances, the ACCC submitted that the Court should make the declaratory relief sought in paras 1 9 of the amended application, particularly given the important public interest element involved and also having regard to the fact that the ACCC stands apart from other litigants in that its functions include the furtherance of those public interests. I agree.
Case: Glev Pty Limited v Kentucky Fried Chicken Pty Limited [1994] FCA 916 ; (1994) ATPR 41-299
Outcome: referred to
ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J said that the Act permitted the granting of an injunction to deter an offender from repeating the offence and in TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296 , Toohey J said that even where there was no evidence to indicate the offenders intention to continue the offending conduct, it might be appropriate to mark the Courts disapproval by an injunction. In Glev Pty Limited v Kentucky Fried Chicken Pty Limited [1994] FCA 916 ; (1994) ATPR 41-299 , von Doussa J pointed out that in applications for an injunction under the Act there is an element of public interest involved and the Court should be slower to withhold relief.
Case: ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248 
Outcome: referred to
ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J said that the Act permitted the granting of an injunction to deter an offender from repeating the offence and in TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296 , Toohey J said that even where there was no evidence to indicate the offenders intention to continue the offending conduct, it might be appropriate to mark the Courts disapproval by an injunction. In Glev Pty Limited v Kentucky Fried Chicken Pty Limited [1994] FCA 916 ; (1994) ATPR 41-299 , von Doussa J pointed out that in applications for an injunction under the Act there is an element of public interest involved and the Court should be slower to withhold relief.
Case: Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621
Outcome: referred to
51AA incorporates into the Act the unwritten law in relation to unconscionable conduct thereby extending the remedies available under the Act for unconscionable conduct to the extent that this concept is presently part of the common law or equitable principles recognised by the courts. Unconscionable conduct is conduct which attracts a sufficient level of judicial opprobrium to support the grant of relief based on principles set out in specific equitable doctrines established by Courts of Equity: Australian Competition &amp; Consumer Commission v CG Berbatis Holdings Pty Limited (2003) 214 CLR 51. Unconscionability is a concept which requires a high level of moral obloquy. It is not necessary for the party who has benefited from a transaction challenged as unconscionable to itself have created the special advantage which forms the basis of the unconscionability claim. It is sufficient if that party knows, or ought to have known, of the other party's situation of special disadvantage and takes unfair advantage of the opportunity presented: Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621. A person will be under a special disadvantage if there are circumstances seriously affecting the ability of the person to make a judgement in his or her own best interests: Berbatis Holdings per Gleeson CJ at [5]. A person is not under a special disadvantage simply because of inequality of bargaining power: Berbatis Holdings .
Case: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 
Outcome: applied
power to make a declaration is a discretionary one and the basis upon which it should be exercised is conveniently summarised by Kenny J in Australian Competition &amp; Consumer Commission v Henry Kaye and National Investment Institute Pty Limited [2004] FCA 1363 at [200] [201]. In Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 41 FCR 89 , Sheppard J held that the concern of the Act with the public interest supported the view that the Court may, in appropriate cases, exercise its power to grant the declaratory relief to mark its disapproval of particular conduct engaged in contravention of the Act: [1993] FCA 83 ; [1993] 41 FCR 89 at 100 see also 106 per Foster J and 107 per Hill J; Australian Competition &amp; Consumer Commission v Goldy Motors Pty Limited (2001) ATPR 41-801 at [34] per Carr J; Australian Competition &amp; Consumer Commission v Target Australia Pty Limited [2001] FCA 1326 ; (2001) ATPR 41-840 at [18] per Lee J. In the circumstances, the ACCC submitted that the Court should make the declaratory relief sought in paras 1 9 of the amended application, particularly given the important public interest element involved and also having regard to the fact that the ACCC stands apart from other litigants in that its functions include the furtherance of those public interests. I agree.
Case: TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296
Outcome: cited
ICI Australia Operations Pty Limited v TPC [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J said that the Act permitted the granting of an injunction to deter an offender from repeating the offence and in TPC v Mobil Oil Australia Limited [1984] FCA 363 ; (1985) 4 FCR 296 , Toohey J said that even where there was no evidence to indicate the offenders intention to continue the offending conduct, it might be appropriate to mark the Courts disapproval by an injunction. In Glev Pty Limited v Kentucky Fried Chicken Pty Limited [1994] FCA 916 ; (1994) ATPR 41-299 , von Doussa J pointed out that in applications for an injunction under the Act there is an element of public interest involved and the Court should be slower to withhold relief.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
75B of the Act provides that a person is involved in a contravention of a provision of Part V (which includes ss 51AA, 52, 53B and 58 of the Act) where a person has been in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention. The words 'party to a contravention' refer to a person who participates in, or assents to, the contravention. To be regarded as participating, a person must have knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The evidence establishes that Mr Darley Stephen was knowingly concerned in or a party to the contraventions which the ACCC alleges as against Zanok. That evidence is contained in the following: In the circumstances, the ACCC submitted the Court should make a declaration in accordance with para 8 of the amended application. For the reasons outlined above, including at [19] above, I agree. The ACCC also submitted the evidence establishes that Ms Vanitha Darley was a person directly or indirectly knowingly concerned in or a party to the contraventions of Zanok alleged by the ACCC. That evidence is contained in the following:
Case: F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56
Outcome: cited
Cadbury submitted that the onus rested on Effem to establish that, if granted, the Patent would be clearly invalid: F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at [48] - [67] . 14 Cadbury further submitted that in the circumstances, it was not required to adduce any evidence to counter the ground of opposition that succeeded before the Delegate or any other ground of opposition.
Case: Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324
Outcome: cited
Recently, in European Community v Commissioner of Patents [2006] FCA 706 , Young J dealt with a similar submission made in similar forensic circumstances. Young J accepted the submission and held that the appeal should be allowed and that the application for the patent should proceed to grant. His Honour referred to Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 at 588-589 per King J; and Titan Mining &amp; Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 at 75-76 per McLelland J.
Case: Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587
Outcome: cited
Recently, in European Community v Commissioner of Patents [2006] FCA 706 , Young J dealt with a similar submission made in similar forensic circumstances. Young J accepted the submission and held that the appeal should be allowed and that the application for the patent should proceed to grant. His Honour referred to Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 at 588-589 per King J; and Titan Mining &amp; Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 at 75-76 per McLelland J.
Case: European Community v Commissioner of Patents [2006] FCA 706
Outcome: followed
Recently, in European Community v Commissioner of Patents [2006] FCA 706 , Young J dealt with a similar submission made in similar forensic circumstances. Young J accepted the submission and held that the appeal should be allowed and that the application for the patent should proceed to grant. His Honour referred to Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 at 588-589 per King J; and Titan Mining &amp; Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 at 75-76 per McLelland J. 16 I have read those authorities, but will not review them. They support the following propositions: &#8226; on the hearing of an appeal under s 60(4) of the Act (the precursor provision, with which the cases to which Young J referred were concerned, was s 60(5) of the Patents Act 1952 ), the only evidence to be taken into consideration is that adduced on that hearing; &#8226; the applicant is not obliged to put into evidence the evidentiary material that was before the Commissioner or other evidence, going to the merits of the appeal or going to actual or potential grounds of opposition; &#8226; where, as in the present case, the opponent has withdrawn and the Commissioner has indicated on the hearing of the appeal that she does not wish to take any active part in the proceeding, and there is no evidence before the Court capable of supporting any actual or potential ground of opposition, there is no basis on which the Court can uphold any ground of opposition. 17 It is important to note that in the light of the history of the application, and, in particular, the Commissioner's acceptance of the application and the complete specification, s 61 of the Act would have obliged the Commissioner to grant the Patent if there had been no opposition to the grant. In substance, that is now the position on the appeal. 18 The appeal should be allowed, the Commissioner's decision allowing the opposition should be reversed, and the Patent application should proceed to grant.
Case: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 
Outcome: applied
The Court's task in construing a certified agreement such as the 2005 Enterprise Agreement was described by the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [30] (per Gummow, Hayne and Heydon JJ). Adapting the language of that paragraph, the question of construction is to be resolved as follows: "[Clause 17.4] must be read in context. It is necessary, therefore, to have regard not only to the text of [cl 17.4], but also to a number of other matters: first, the other provisions made by [cl 17]; secondly, the text and operation of the [2005 Enterprise Agreement] both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the [2005 Enterprise Agreement] was made and in which it was to operate." See also Gleeson CJ and McHugh J at [2]; Kirby J at [93] and [96] and Callinan J at [130] - [131]. See also Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 at [27] and Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd (2005) 141 IR 105 at [48]-[49].
Case: Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers' Association [2003] FCAFC 209 
Outcome: cited
The Court's adoption of a "purposive" approach to the interpretation of statutory instruments, awards and certified agreements has been explained by various courts: Vision Super Pty Ltd v Poulter [2006] FCA 849 ; (2006) 154 FCR 185 at [66] [69]; Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers Association [2003] FCAFC 209 at [8] ; Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 and Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 at 218. In Kucks v CSR Limited (1996) 66 IR 182 at 184, Madgwick J put the point in the following terms: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."
Case: Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 
Outcome: cited
The Court's adoption of a "purposive" approach to the interpretation of statutory instruments, awards and certified agreements has been explained by various courts: Vision Super Pty Ltd v Poulter [2006] FCA 849 ; (2006) 154 FCR 185 at [66] [69]; Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers Association [2003] FCAFC 209 at [8] ; Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 and Hawkins v Commonwealth Bank of Australia (No 2) (1996) 70 IR 213 at 218. In Kucks v CSR Limited (1996) 66 IR 182 at 184, Madgwick J put the point in the following terms: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."
Case: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211
Outcome: cited
The Court's task in construing a certified agreement such as the 2005 Enterprise Agreement was described by the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [30] (per Gummow, Hayne and Heydon JJ). Adapting the language of that paragraph, the question of construction is to be resolved as follows: "[Clause 17.4] must be read in context. It is necessary, therefore, to have regard not only to the text of [cl 17.4], but also to a number of other matters: first, the other provisions made by [cl 17]; secondly, the text and operation of the [2005 Enterprise Agreement] both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the [2005 Enterprise Agreement] was made and in which it was to operate." See also Gleeson CJ and McHugh J at [2]; Kirby J at [93] and [96] and Callinan J at [130] - [131]. See also Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 at [27] and Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd (2005) 141 IR 105 at [48]-[49].
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55
Outcome: cited
Telstra will be ordered to pay William McDonald $18,194.16 which sum comprises the amounts listed in [9] above. I will also allow pre-judgment interest under s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) calculated at the rate fixed from time to time in accordance with the Penalty Interest Rates Act 1983 (Vic). This follows the usual practice of this Court in adopting the rates of interest applied in the relevant State Supreme Court: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; Walker v Citigroup Global Market Pty Ltd [2005] FCA 1866 and Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 2 October 2007 Counsel for the Applicant: Mr R Reitano Solicitor for the Applicant: Slater &amp; Gordon Counsel for the Respondent: Mr R Dalton Solicitor for the Respondent: Freehills Date of Hearing: 17 September 2007 Date of Judgment: 2 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1515.html