mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: ACCC v Hercules Iron Pty Ltd [2008] FCA 1182
Outcome: cited
there is no violation of s 65C of the TPA. As noted earlier s 65C1(a) prohibits the supply of goods which do not comply with a prescribed safety standard. In contrast to ss 52 and 53, s 65C does not ask whether a consumer is likely to be misled, nor does it ask what a consumer might understand about a certain product. To put it even more bluntly, s 65C is not concerned with representations at all. It simply poses an objective question: has a product been supplied for consumer use which does not comply with a prescribed safety standard? To prove a case under this provision, a party must: (1) identify a product; (2) identify the time of supply of that product; (3) identify the relevant safety standard in force at the time; and (4) lead evidence showing that the particular product did not meet the standard: see ACCC v Hercules Iron Pty Ltd [2008] FCA 1182 at [10] . LED Tech, in approaching its case on a misleading and deceptive conduct basis only, failed to establish the elements of its s 65C case in a satisfactory manner. While it led evidence of safety tests and the supply of lamps, it failed to connect particular lamps, having been supplied at particular times, to particular tests demonstrating non-compliance of those lamps with the ADRs. The last bit would in any event have been tricky, if not impossible, because the ADRs, due to the peculiar amendments that have been made to the UNECE Regulation and the uncertain status of the Circulars, do not really prescribe much of a standard. Not only is a 20% variance in luminosity allowed, there is no procedure (notwithstanding any industry practice or understanding to the contrary) as to how compliance with the standard is to be assessed and proved. Based on the evidence, it appears that the tests relied on by LED Tech to establish the non-compliance of the Condor Products may have applied stricter procedural and substantive criteria than those actually imposed by the applicable rules and regulations. Therefore, I cannot be satisfied on the balance of the probabilities that the Corporate Respondents did in fact supply products that did not comply with the ADRs. No damage
Case: ACCC v Kaye [2004] FCA 1363
Outcome: cited
if LED Tech had established damage, I do not consider that each of Messrs Keller and Armstrong knew of the "essential matters" that enabled the representations to be characterised in the manner contended: ACCC v Kaye [2004] FCA 1363 at [182] - [186] . To adopt the language of the majority of the Full Court in Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 at [12-16] , although I accept that each of Messrs Keller and Armstrong knew (1) that the Condor Products were manufactured, sold and packaged and (2) the content of the manner in which they were sold which might lead members of at least one class of consumer to believe that the products complied with "prescribed consumer product safety standards", I do not conclude that either Messrs Keller or Armstrong knew the facts that meant that the Representations were not correct. As to the "ADR Approved" representation, they gave evidence as to their subjective understanding of the representation conveyed, which, while possibly negligent or even reckless, was not such as to suggest wilful blindness or actual knowledge of how a relevant purchaser might understand it. As to the "Complies with ADR" representation, their evidence (which I accept) was that they relied upon oral and written assurances from their Chinese manufacturer and testing laboratories which turned out to be belatedly or never substantiated. Was that conduct less than wise? - Yes. Was it negligent and possibly even reckless? - Again, yes. But on the current state of the authorities that is not sufficient to establish the actual knowledge necessary to establish accessorial liability under the TPA. Significantly, it was never put to either Mr Keller or Mr Armstrong during the course of cross-examination that they knew these "essential matters". Accordingly, even if LED Tech had established that the TPA contraventions had caused it damage, they could not establish the secondary liability of the Directors for those contraventions.
Case: ACCC v MHG Plastic Industries Pty Ltd [1999] ATPR 41-712
Outcome: cited
the question remains, what then is the Australian standard? One thing that does not inform the answer to this question is industry practice. A deal of evidence was led as to what automotive industry experts thought the ADRs required and how the industry tested for compliance in practice. The general thrust of this evidence was that the industry treated much of the removed sections as still being applicable. However, as the Court stated in MHG Plastic Industries v ACCC (2000) ATPR (Digest) 46-206 at [49], any industry practice adopted as to the testing of products against a safety standard cannot affect the proper construction of the requirements under the safety standard. As Emmett J said at first instance in that decision ( ACCC v MHG Plastic Industries Pty Ltd [1999] ATPR 41-712 at [22]), " The Standard means what it says" .
Case: Adidas-Solomon AG v Turner (2003) 58 IPR 66
Outcome: cited
the circumstances, the better approach is to assess damages doing the best I can, even if such quantification necessarily involves a degree of speculation and guesswork: eg Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] ; Adidas-Solomon AG v Turner (2003) 58 IPR 66 at [4]-[5]; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 , 183; Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [7] .
Case: Allen Manufacturing Co Pty Ltd v McCallum &amp; Co Pty Ltd [2001] FCA 1838 ; (2001) 53 IPR 400
Outcome: cited
Allen Manufacturing Co Pty Ltd v McCallum &amp; Co Pty Ltd [2001] FCA 1838 ; (2001) 53 IPR 400 at [39] , a design infringement case, the Full Court of the Federal Court considered the two tests in the following terms: The authorities were collected and analysed by Beazley J in King v Milpurrurru (1996) 66 FCR 474 at 494-500..... Her Honour noted the existence of two lines of authority. One line supported what she called the "Performing Right Society test " : whether the director had "directed or procured" the company's infringement. The other line supported "the Mentmore test": whether the director had engaged in "the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it". Beazley J expressed a preference for the Mentmore test, on the basis that the Performing Right Society test did not "pay sufficient regard, either to the separate legal existence of the company, or to the fact that the company acts through its directors": see [66 FCR at 500]. However, this preference had no immediate consequence; her Honour held (again at [500]) that the appellants were not liable under either test.
Case: Apple Computer Inc (2007) 74 IPR 164
Outcome: referred to
"informed user" concept has also been considered by the courts in the United Kingdom. In Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1 at [59], Judge Fysh QC of the Patents County Court defined an informed use r in the following terms: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design - and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of "the man in the street". " Informed " to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of "what's about in the market?" and "what has been about in the recent past?" I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the "man skilled in the art" whose "nerd-like" (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] ( CA). This formulation was considered and approved by Lewison J in Proctor &amp; Gamble Company 73 IPR 605 at [31], [32] and [41] and was also applied in Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10. To the extent that it matters (and it might not), the Australian Designs Office ("the ADO") has indicated that the informed user concept is an objective test where the user is an ordinary or typical member of a sample of users of the product who is reasonably informed, being neither barely informed nor fully expert: Apple Computer Inc (2007) 74 IPR 164 and Icon Plastics Pty Ltd [2007] ADO 2 as discussed in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [25] .
Case: Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10
Outcome: cited
"informed user" concept has also been considered by the courts in the United Kingdom. In Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1 at [59], Judge Fysh QC of the Patents County Court defined an informed use r in the following terms: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design - and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of "the man in the street". " Informed " to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of "what's about in the market?" and "what has been about in the recent past?" I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the "man skilled in the art" whose "nerd-like" (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] ( CA). This formulation was considered and approved by Lewison J in Proctor &amp; Gamble Company 73 IPR 605 at [31], [32] and [41] and was also applied in Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd [2007] ECDR 10. To the extent that it matters (and it might not), the Australian Designs Office ("the ADO") has indicated that the informed user concept is an objective test where the user is an ordinary or typical member of a sample of users of the product who is reasonably informed, being neither barely informed nor fully expert: Apple Computer Inc (2007) 74 IPR 164 and Icon Plastics Pty Ltd [2007] ADO 2 as discussed in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 at [25] .
Case: Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106
Outcome: cited
relevant legal principles are well known. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [37] .
Case: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521
Outcome: applied
.au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 at [12] - [26] , Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 , 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows:
Case: Australian Competition and Consumer Commission v Telstra [2004] FCA 987 ; (2004) 208 ALR 459
Outcome: cited
it is necessary to ask whether the representations conveyed are false, misleading or deceptive or likely to mislead or deceive. This is a "quintessential question of fact": Australian Competition and Consumer Commission v Telstra [2004] FCA 987 ; (2004) 208 ALR 459 at [49] .
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
the conduct complained of in the present matter was not directed at a specific individual, both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 , 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ.
Case: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
relevant legal principles are well known. A two-step analysis is required. First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [105] ; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] ATPR 42-000 at [18] per Dowsett J (with whom Jacobson and Bennett JJ agreed) and Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [37] . Because the conduct complained of in the present matter was not directed at a specific individual, both questions that have been identified must be considered by reference to the class or classes of consumers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 , 199 per Gibbs CJ; Nike at [102], [103], [105] and [106]; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [36] per Gleeson CJ, Hayne and Heydon JJ. In .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 at [12] - [26] , Finkelstein J provided a useful summary of the approach that might be taken where a court is required to assess conduct by reference to a specific class or classes of consumers and did that by particular reference to Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 , 202-203 per Deane and Fitzgerald JJ and Nike at [100]-[103]. The approach may be summarised in six points, as follows:
Case: Chris Ford Enterprises Pty Ltd v BH &amp; JR Badenhop Pty Ltd (1985) 7 FCR 75
Outcome: applied
of a design is in the "person whose mind conceives the relevant shape, configuration, pattern or ornamentation applicable to the article in question and reduces it to visible form": Chris Ford Enterprises Pty Ltd v BH &amp; JR Badenhop Pty Ltd (1985) 7 FCR 75 , 80. On the facts just described, it is clear that Mr Ottobre is the person who conceived the relevant shape, configuration and pattern of the Designs and reduced it to a visible form; "M" simply converted that design to an electronic form in order to facilitate the production process. Put another way, it was Mr Ottobre, not "M", who had the idea for dual and triple combination LED lamps in one base. It was Mr Ottobre who reduced that idea to visible form in the sketches. As the engineering drawings marked "1", "2" and "3" on Annexure C record, it was Mr Ottobre's sketches which contained the features different from those in any other previous design. Accordingly, Mr Ottobre was "the person who created the design" and his company as his employer was the sole person entitled to be registered as its owner: s 13(1)(b) of the 2003 Designs Act . Assuming, contrary to what I have just found, that the facts set out above would support the conclusion that it was an employee or employees of "M", instead of (or in addition to) Mr Ottobre, who was the author of the Designs, then my conclusion on the entitlement question would not change. I accept (and it was not contested) that "M" was an independent contractor rather than an employee of LED Tech. That being so, "M" and its employees did the work "under a contract with another person" (LED Tech) within the meaning of s 13(1)(b) of the 2003 Designs Act and LED Tech is the person entitled to register the design thus created. There was some dispute as to whether there was in fact any contract between LED Tech and "M" for the creation of the CAD drawings. The proposition was founded on the basis that there was no separate charge or entry on any billing invoice relating specifically to the provision of that particular service. It may greatly be doubted that the absence of an itemised amount charged for the service goes any distance towards showing that the work was not done under a contract. Be this as it may, in the end, I accept the evidence of Mr Chao that the price on the invoice for the moulds included in it the cost of the creation of the CAD drawings, which were necessary and incidental to the manufacture of the moulds themselves. In other words, I am satisfied that the Designs, to the extent that they were created by "M" at all, were so created pursuant to a contract with LED Tech.
Case: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26 ; (1981) 147 CLR 297
Outcome: cited
is an Administrator of Vehicle Standards: s 22 of the MVSA. It is common ground that proof of vehicle standards is not required: s 143(1)(b) of the Evidence Act 1995 (Cth). The Minister has determined the following relevant standards as vehicle standards pursuant to s 7 of the MVSA: Vehicle Standard (Australian Design Rule 1/00 Reversing Lamps) 2005 White dated 21 November 2005 ("ADR 1"), prescribes the photometric requirements for reversing lamps which will warn pedestrians and other road users that the vehicle is about to move or is moving in the reverse direction, and which during the hours of darkness will aid the driver in reversing manoeuvres; Vehicle Standard (Australian Design Rule 6/00 Direction Indicators) 2005 Yellow / Amber dated 13 December 2006 ("ADR 6"), prescribes the photometric requirements for a device mounted on a motor vehicle or trailer which when operated by the driver signals the latter's intention to change the direction in which the vehicle is proceeding; Vehicle Standard (Australian Design Rule 49/00 Front and Rear Position (Side) Lamps, Stop Lamps and End Outline Marker Lamps) 2005 Red dated 3 April 2007 ("ADR 49"), prescribes the photometric requirements for light-signalling devices which will indicate the presence, width and position of the vehicle when viewed from the front and from the rear. The determination accompanying ADR 1 suggests that the ADR was determined to be a vehicle standard under s 7(1) of the MVSA. No such provision exists. For the purposes of this analysis I have assumed that the determination was in fact made under s 7 of the MVSA. None of the parties suggested that this apparent error invalidated or otherwise altered the operation of the standard, and in any event the authorities hold that, as a general matter, judicial redrafting of obvious typographical errors is permitted: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 21-22; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26 ; (1981) 147 CLR 297 , 305, 311, 321.
Case: Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 76 IPR 83
Outcome: cited
the second event, the 7 September 2007 letters, contained a threat of legal proceedings at a time when the current proceedings had already been on foot for some 5 months against Elecspess and AAA in respect of infringement of the Designs: see Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 76 IPR 83 at [41] and authorities there cited (stating that threats made after proceedings have already been instituted or that result in the bringing of proceedings are less likely to be deemed unjustified). For those reasons, the cross-claimants' claim of unjustified threats of design infringement is rejected. TPA claims The cross-claimants also claim that LED Tech and Mr Ottobre engaged in misleading and deceptive conduct. The conduct said to breach s 52 of the TPA comprised three separate events. LED Tech's website
Case: Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167
Outcome: cited
the circumstances, the better approach is to assess damages doing the best I can, even if such quantification necessarily involves a degree of speculation and guesswork: eg Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] ; Adidas-Solomon AG v Turner (2003) 58 IPR 66 at [4]-[5]; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 , 183; Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [7] .
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: cited
next matter to be considered is the claim of secondary liability of the Directors under the TPA. The principles are well established. Natural persons will be liable in damages for a contravention by a corporation if they had a "close, rather than a remote involvement in the contravention": Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 , 584. Moreover, the participation in the contravention requires actual, rather than constructive, knowledge of the essential matters that make up the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666-670 and 677, Rural Press Ltd v ACCC [2002] FCAFC 213 ; (2002) 118 FCR 236 at [67] and Quinlivan v ACCC (2004) 160 FCR 1 at [8]-[9].