mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Roland Corporation v Lorenzo &amp; Sons Pty Ltd [1991] FCA 617 ; (1991) 33 FCR 111
Outcome: applied
my opinion the sun device is of sufficient complexity to attract copyright protection: see Roland Corporation v Lorenzo &amp; Sons Pty Ltd [1991] FCA 617 ; (1991) 33 FCR 111 at 114-115 and the authorities there cited. The device was "plainly drawn with care, to obtain an effect." It is certainly as complex (if not more so) than the two devices which, in Roland Corporation , would have been accorded protection but for a defence which was not relied on by Hepbourne in the present proceeding. Sections 36 and 38 of the Copyright Act identify some of the circumstances in which an infringement of copyright may occur. They provide: "36 (1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright. (1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following: (a) the extent (if any) of the person's power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned; (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. (2) The next three succeeding sections do not affect the generality of this section. ... 38 (1) Subject to Division 3, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, in Australia, and without the licence of the owner of the copyright: (a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or (b) by way of trade exhibits an article in public; if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement. (2) For the purposes of the last preceding subsection, the distribution of any articles: (a) for the purpose of trade; or (b) for any other purpose to an extent that affects prejudicially the owner of the copyright concerned; shall be taken to be the sale of those articles. (3) In this section: article includes a reproduction or copy of a work or other subject-matter, being a reproduction of copy in electronic form". As already noted, s 14 of the Act provides that a reproduction of a substantial part of a copyright work is sufficient to constitute an infringement of that work.
Case: Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852
Outcome: referred to
though the evidence may be deficient, the Court is, nonetheless, obliged to do the best it can to make a just and fair assessment of the quantum of damages. In Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373 ; (1984) 3 IPR 619 at 637 the Full Court observed that: "The principle is clear. If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages. We should add that we can see no reason why this principle should not apply in cases under the Trade Practices Act as well as in cases at common law". See also: Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852 at [7] - [8] . One basis for assessing damages in cases in which infringements of intellectual property rights have occurred is the making of an estimate of sales lost by the applicant as a result of the infringing conduct. Such an approach is apposite in cases such as the present where the infringing conduct has been engaged in for the purpose of convincing purchasers that they are acquiring the applicant's products: see Aristocrat Technologies at 570; Sony Computer at [8].
Case: Swaby v Lift Capital Partners Pty Ltd [2009] FCA 749
Outcome: cited
471B of the Corporations Act does not prescribe criteria which condition the exercise of the Court's power to grant leave to a person to begin or proceed with a proceeding against a company in liquidation. Although there is extensive case law on applications made under s 471B and its predecessors, no attempt has been made to identify exhaustively the circumstances in which it might be appropriate for leave to be granted: see Re Gordon Grant and Grant Pty. Ltd. [1983] 2 Qd R 314 at 317. The case law has recently and helpfully been summarised by Gilmour J in Swaby v Lift Capital Partners Pty Ltd [2009] FCA 749 at [22] - [32] .
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 ; (2002) 55 IPR 354
Outcome: referred to
tort does not require proof of subjective intention to mislead or actual deception: see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 ; (2002) 55 IPR 354 at 372. The misrepresentation must be likely to lead the public to believe that the goods are those of the applicant. Section 52 of the TP Act relevantly provides that: "(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) ....". Section 9(1) of the FT Act is in the same terms save that the word "person" appears instead of "corporation" and the word "must" appears instead of "shall". These findings also have relevance in the present context. There has been a deliberate attempt by those involved in the manufacture of the counterfeit boots (including Hepbourne and Vladimir Vaysman) to persuade potential purchasers that they would be purchasing what were described as "genuine UGG australia" products. Vladimir Vaysman so informed those involved in the marketing of the footwear including Ms Farley and Ms Sommer. In these circumstances, and in the absence of any contrary evidence, the inference may comfortably be drawn that Hepbourne, Vladimir Vaysman and the other Respondents who were involved replicated or substantially replicated Deckers' get-up in an attempt to convince potential purchasers that they were acquiring the genuine Deckers' product. As Weinberg and Dowsett JJ said in Sydneywide Distributors at 388: "Without wishing to labour the point unduly, we again point out that where a trader, having knowledge of a particular market, borrows aspects of a competitor's get-up, it is a reasonable inference that he or she believes that there will be market benefit in so doing. Often, the obvious benefit will be the attraction of custom which would otherwise have gone to the competitor. It is an available inference from those propositions that the trader, with knowledge of the market, considered that such borrowing was "fitted for the purpose and therefore likely to deceive or confuse"...". See also Australian Woollen Mills Limited v F.S. Walton and Company Limited [1937] HCA 51 ; (1937) 58 CLR 641 at 657 per Dixon and McTiernan JJ.
Case: TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43
Outcome: referred to
elements of a cause of action in passing-off were identified by Lord Oliver in Reckitt and Colman Products Ltd v Borden Inc (1990) 17 IPR 1 at 7. In Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 at 369, the Full Court approved and summarised the elements to be derived from Reckitt : "(1) that the trader's get-up, including any brand name, is recognised by the public as distinctive specifically of the plaintiff's goods; (2) that there has been a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that the goods offered by the defendant are the plaintiff's goods (whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods is immaterial, provided they are identified with a particular source, eg by means of a brand name which is in fact the plaintiff's); (3) that the plaintiff suffers or, in a quia timet action is likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods is the same as the source of those offered by the plaintiff". See also TGI Friday's Australia Pty Ltd v TGI Friday's Inc (1999) 45 IPR 43 at 50.
Case: University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1
Outcome: cited
it may readily be concluded that Hepbourne, acting through Vladimir Vaysman, authorised the infringing conduct in the sense as provided for in s 36(1A) of the Copyright Act . Hepbourne had control of the Moorabbin factory. It could have, had it wished to do so, prevented the manufacture and distribution of the infringing articles by refusing entry to those who were involved in the infringing conduct. Vladimir Vaysman's knowledge of the fact that the infringing conduct was taking place in the factory may be attributed to Hepbourne. There is no evidence to suggest that Hepbourne took any steps to prevent or avoid the infringing conduct which took place at the Moorabbin factory. The contrary is true. Hepbourne, acting through Vladimir Vaysman and others recruited by him, undertook, procured and oversaw the infringing conduct. His conduct therefore passed well beyond "mere inactivity or indifference": he clearly sanctioned, approved and countenanced the infringement of Deckers' rights: see The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 12 (per Gibbs J), 20 (per Jacobs J); Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 at 408, 410-1 (per Kenny J). Passing-Off / Misleading Conduct
Case: Victoria University of Technology v Wilson [2004] VSC 33 ; (2004) 60 IPR 392
Outcome: cited
Rishwain's evidence relates to the ownership of the copyright subsisting in the sun device and the logo which contains the sun device and the other two elements. Although she is unable to recall the names of the specific employees who created these works, she does depose that they were created by employees of Deckers' predecessor in the course of those employees' employment. That evidence is sufficient, in my view, to render Deckers the owner of the copyright in those works pursuant to s 35(6) of the Act: see Victoria University of Technology v Wilson [2004] VSC 33 ; (2004) 60 IPR 392 at 422. Ms Rishwain's inability to identify the particular employees is not an obstacle to the making of this finding. Mr Bergstrom deposed that he was the author of the text appearing on the "UGG australia" care instruction card and most of the "UGG australia" information booklet. He wrote both texts whilst employed by Deckers and in the course of his employment by that company. Deckers thereby became the owner of the copyright in these literary works pursuant to s 35(6). Ms Trayfors took the photographs which appear in the "UGG australia" information booklet. She did so pursuant to a contract for services with Deckers. She was the "author" of those photographs: see s 10 of the Copyright Act . She was, therefore, initially the owner of the copyright in the photographs. Her undisputed evidence is, however, that she assigned all of her rights in the photographs to Deckers. Deckers thereby became the owner of the copyright in those works.
Case: Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748
Outcome: referred to
for Deckers invites a comparison of the circumstances of the present case with a large number of other cases in which both compensatory and additional damages have been awarded for copyright infringement. Attention was also directed to the quantum of the damages awarded in those cases. They include Aristocrat Technologies , Microsoft Corporation v Glostar Pty Ltd (t/as Downtown Technology Centre) (2003) 57 IPR 518 ; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748 ; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54 ; Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 ; Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102 ; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 ; Foxtel Management Pty Ltd v Mod Shop Pty Ltd [2007] FCA 463 ; (2007) 72 IPR 1 ; Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 ; and Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton On Clothing Pty Ltd (ACN 052 130 462) (2009) 8 IPR 378. These authorities are of limited assistance. They emphasise the unfettered nature of the discretion conferred on the Court in fixing an appropriate measure of additional damages. They demonstrate that, depending on the circumstances of the case, a significant award of additional damages can be made even though compensatory damages are fixed at a nominal sum; and that additional damages are often fixed at a lower sum than that awarded for compensatory damages. They make it plain that there is no recognised practice of awarding additional damages in an amount equal to or lower than compensatory damages: cf Raben Footwear at 104 (per Tamberlin J).
Case: XL Petroleum (N.S.W.) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited [1985] HCA 12 ; (1985) 155 CLR 448
Outcome: cited
purposes served by the award of exemplary damages include the punishment of the offender and deterrence of similar conduct in the future: see XL Petroleum (N.S.W.) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited [1985] HCA 12 ; (1985) 155 CLR 448 at 471. These considerations are also to be discerned in ss 115(4)(b)(i) , (ia) and (ib).
Case: Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155
Outcome: referred to
for Deckers invites a comparison of the circumstances of the present case with a large number of other cases in which both compensatory and additional damages have been awarded for copyright infringement. Attention was also directed to the quantum of the damages awarded in those cases. They include Aristocrat Technologies , Microsoft Corporation v Glostar Pty Ltd (t/as Downtown Technology Centre) (2003) 57 IPR 518 ; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748 ; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54 ; Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 ; Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102 ; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 ; Foxtel Management Pty Ltd v Mod Shop Pty Ltd [2007] FCA 463 ; (2007) 72 IPR 1 ; Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 ; and Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton On Clothing Pty Ltd (ACN 052 130 462) (2009) 8 IPR 378. These authorities are of limited assistance. They emphasise the unfettered nature of the discretion conferred on the Court in fixing an appropriate measure of additional damages. They demonstrate that, depending on the circumstances of the case, a significant award of additional damages can be made even though compensatory damages are fixed at a nominal sum; and that additional damages are often fixed at a lower sum than that awarded for compensatory damages. They make it plain that there is no recognised practice of awarding additional damages in an amount equal to or lower than compensatory damages: cf Raben Footwear at 104 (per Tamberlin J).
Case: Australian Broadcasting Authority v Project Blue Sky [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
It is of course well established that the general purpose and policy of a statutory provision are a guide to its proper construction: see Australian Broadcasting Authority v Project Blue Sky [1998] HCA 28 ; (1998) 194 CLR 355 at [69] [71]; see also CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1995) 187 CLR 384 at 408. Ordinarily, the purpose will be gleaned from the legislative history and other extrinsic material as well as from the provisions of the statute considered as a whole: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112-113 per McHugh J. Regard may be paid to an object clause but it is to be read in light of the overall statutory regime: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: applied
In order to succeed on the "no evidence" ground contained in 5(1)(h) and 5(3)(b) of the ADJR Act , Adultshop must do more than negative the existence of a fact on which the decision is based; it must adduce evidence positively establishing the contrary fact: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at [580] per Weinberg J. 185 This ground of review is confined to findings of fact; it does not extend to expressions of opinion; Reserve Bank Case at [581]. The fact, as to which there is said to be no evidence, must be shown to be critical to the impugned decision: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222; Reserve Bank Case at [584].
Case: Brown v Classification Review Board (1997) 145 ALR 464
Outcome: referred to
The legislative scheme was described by Merkel J at first instance in Brown v Classification Review Board (1997) 145 ALR 464 at 466-468, and, on appeal from that decision, in Brown v Classification Review Board (1998) 82 FCR 225 at 231-233 (per French J), and at 252-254 (per Sundberg J). See also New South Wales Council for Civil Liberties Inc v Classification Review Board (No. 2) [2007] FCA 896 at [4] - [8] (per Edmonds J).
Case: Brown v Classification Review Board (1998) 82 FCR 225 
Outcome: referred to
The legislative scheme was described by Merkel J at first instance in Brown v Classification Review Board (1997) 145 ALR 464 at 466-468, and, on appeal from that decision, in Brown v Classification Review Board (1998) 82 FCR 225 at 231-233 (per French J), and at 252-254 (per Sundberg J). See also New South Wales Council for Civil Liberties Inc v Classification Review Board (No. 2) [2007] FCA 896 at [4] - [8] (per Edmonds J).
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: referred to
On appeal in Brown v Classification Review Board , Sundberg J said that a court should only interfere with the decision of the Board (or the Review Board) if the conclusion was not reasonably open on the material before the Board. This states the test for unreasonableness in similar terms to that of Gibbs J in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. 180 Adultshop submitted that the Review Board's decision was unreasonable within this test on two bases. First, the Review Board "unreasonably refused to accept persuasive, unchallenged and uncontradicted evidence in deciding that Viva Erotica was offensive to a majority of adults." 181 The second ground of unreasonableness was said to be that the Review Board relied on facts for which no supporting evidence existed.
Case: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1995) 187 CLR 384
Outcome: cited
It is of course well established that the general purpose and policy of a statutory provision are a guide to its proper construction: see Australian Broadcasting Authority v Project Blue Sky [1998] HCA 28 ; (1998) 194 CLR 355 at [69] [71]; see also CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1995) 187 CLR 384 at 408. Ordinarily, the purpose will be gleaned from the legislative history and other extrinsic material as well as from the provisions of the statute considered as a whole: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 112-113 per McHugh J. Regard may be paid to an object clause but it is to be read in light of the overall statutory regime: IW v City of Perth [1997] HCA 30 ; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
Case: Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 
Outcome: cited
There is ample authority for the proposition that inflexible application of a policy, even if the policy is consistent with the statute under which the power is conferred, gives rise to reviewable error: see eg NEAT Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 ; (2003) 216 CLR 277 at [24] per Gleeson CJ; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 364 at 640-641 per Brennan J; Elias v Commissioner of Taxation [2002] FCA 845 ; 123 FCR 499 at [34] per Hely J. Further authority for this proposition may be found in Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; Oreb v Willcock [2004] FCA 1520 at [172] ; and Le v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 51 at [100] .
Case: Hutchins v The State of Western Australia [2006] WASCA 258 
Outcome: considered
Senior Counsel for Adultshop called in aid the remarks of Wheeler JA in Hutchins v The State of Western Australia [2006] WASCA 258 at [4] . Her Honour there observed that the broad social purposes of censorship include ensuring that ordinary members of the community are not affronted by the display of material to which a majority of reasonable adults would object. 128 Wheeler JA's observations in Hutchins were not based upon a consideration of the extensive material or the statute as a whole. Nor was her Honour considering the cooperative legislative scheme which is the subject of these proceedings. Rather, her Honour's remarks were directed at the broad social purpose of this type of legislation. A statement of legislative purpose at this level of generality cannot displace the construction of the statute which emerges from an analysis of the language of the provision in its full context: Victims Compensation Fund v Brown [2002] NSWCA 155 ; (2002) 54 NSWLR 668 at [9] [10] per Spigelman CJ; his Honour's dissenting judgment was approved by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 201 ALR 260. 129 It follows in my view that the observations of Wheeler JA in Hutchins are not authority for the proposition that the words "likely to cause offence to a reasonable adult" imports a test of whether a majority of Australians would be likely to be offended. Moreover, if her Honour intended to say that the test is one of ascertaining the views of a simple majority, that is, 51% of the population, I respectfully disagree. The legislative history, overseas and Australian authority as well as the construction of the phrase in its statutory context all point against that construction. 130 The genesis of the co-operative legislative scheme for censorship of films and other publications is to be found in the Australian Law Reform Commission Report No. 55, Censorship Procedure . The ALRC Report was produced following upon a reference from the then Commonwealth Attorney-General dated 10 May 1990. 131 The Attorney noted in the terms of reference to the ALRC that the Commonwealth, the States and the Territories were in broad agreement as to the policy that ought to be pursued in relation to the censorship of imported and locally produced films. The terms of reference also noted that the ALRC was to draft legislation to give effect to its recommendations.