mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Willis v Commonwealth [1946] HCA 22 ; (1946) 73 CLR 105
Outcome: cited
in effect, was a restatement of what was said by Dixon J in Willis v Commonwealth [1946] HCA 22 ; (1946) 73 CLR 105 at 116 who in turn had cited a passage from Uthwatt J in In re Bradberry; National Provincial Bank Ltd v Bradberry (1943) Ch 35 at pp 42-45. Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331 was a case under s 45D of the TPA concerning secondary boycotts. It was, in that case, necessary that the impugned conduct "would have or be likely to have" the relevant effect. Consideration was given to whether, on an ex post view, the specified effect had occurred. Deane J at 347 citing Dixon J in Willis v Commonwealth [1946] HCA 22 ; 73 CLR 105 explained: if conduct had run its ordinary course and had not had the specified effect, it would be but rarely that a court would feel justified in disregarding the lesson of the event and finding that while the conduct did not have the specified effect it had been more likely than not that it would have had that effect.
Case: Wright v Wheeler Grace &amp; Pierucci Pty Ltd (1988) ATPR 40-865
Outcome: cited
reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace &amp; Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.
Case: York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11
Outcome: cited
have concluded, for reasons which I explain later in this Part that, in the case of each of the framework agreements, there was an intention to contract. This, as a starting point considerably strengthens the case for the defendants because in such circumstances a Court will always strive to give effect to that intention: Hillas &amp; Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 ; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11 ; G R Securities 40 NSWLR 631; Fletcher Challenge Energy [2002] NZLR 433 .
Case: Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191
Outcome: applied
next submits that, whatever the correct apportionment of the costs liability ought to be, those costs should be awarded against it only on the ordinary party-party basis rather than an indemnity basis. In the quantum judgment, I cited the reasons of Besanko J in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746 at [17] (which in turn cited Goldberg J's decision in Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191) for the proposition that a respondent's conduct in its unsuccessful defence of an infringement action may warrant an award of costs against it on an indemnity basis: [2008] FCA 1493 at [58] , [63]. The cited cases, among others, stand as authority for the general proposition that a defendant's conduct in the defence of an action may support an award of indemnity costs where, among other things, the applicant is put to proof of its case unreasonably, the conduct causes undue delay or waste, or the conduct demonstrates wilful disregard of known facts of established law.
Case: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746
Outcome: applied
next submits that, whatever the correct apportionment of the costs liability ought to be, those costs should be awarded against it only on the ordinary party-party basis rather than an indemnity basis. In the quantum judgment, I cited the reasons of Besanko J in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746 at [17] (which in turn cited Goldberg J's decision in Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191) for the proposition that a respondent's conduct in its unsuccessful defence of an infringement action may warrant an award of costs against it on an indemnity basis: [2008] FCA 1493 at [58] , [63]. The cited cases, among others, stand as authority for the general proposition that a defendant's conduct in the defence of an action may support an award of indemnity costs where, among other things, the applicant is put to proof of its case unreasonably, the conduct causes undue delay or waste, or the conduct demonstrates wilful disregard of known facts of established law.
Case: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage &amp; Distribution Pty Ltd [2008] FCA 803
Outcome: referred to
was a copyright infringement and breach of confidence case in which I previously delivered reasons for decision finding in favour of the applicant, Krueger Transport Equipment Pty Ltd ("Krueger"), on the issues of both liability and quantum: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage &amp; Distribution Pty Ltd [2008] FCA 803 (liability judgment) and Krueger Transport Equipment Pty Ltd v Glen Cameron Storage &amp; Distribution Pty Ltd (No 2) [2008] FCA 1493 (quantum judgment). The reader's familiarity with those earlier reasons is assumed for present purposes.
Case: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 
Outcome: cited
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, the Court said: Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [1978] V.R. 431 , at p. 440; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. (1952) 77 W.N. (N.S.W.) 143 , at p. 146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318 , at p. 323: "... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." See also, Brambles Holdings Ltd. v. Trade Practices Commission [1979] FCA 80 ; (1979) 40 F.L.R. 364 , at p. 365; 28 A.L.R. 191 , at p. 193; Dougherty v. Chandler (1946) 46 S.R. (N.S.W.) 370 , at p. 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. The proceeding is listed for hearing on 27 March 2009. The Federal Magistrates Court has now advised that the applicant can appear by video should this Court entertain the applicant's application and appeal. It does not seem that there was any good reason to reject the applicant's application to transfer the proceeding to the Victorian Registry. The proceeding had only recently been commenced. Because of the provisions of s 477 of the Migration Act 1958 (Cth) the applicant could not delay the commencement until she moved to Victoria.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
first respondent also submitted that the Court should not grant leave to appeal without identifying an error of the type described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-5 or find that the exercise of the discretion by the Federal Magistrate had miscarried. The first respondent indicated, however, that if the Court were of the opinion that an extension of time should be granted and leave to appeal be given, then the first respondent would consent to an order for transfer of the proceeding. I think, with respect, that the Minister was right to adopt the attitude to which I have referred which, in my opinion, was entirely reasonable. In House v The King [1936] HCA 40 ; 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Case: Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193
Outcome: referred to
In the case of a literary work, copyright is the exclusive right, amongst other things, to reproduce the work in a material form and to communicate the work to the public: see s 31(1)(a)(i) and (iv). In s 10 , the word "communicate" is defined as "make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter". Hence, in making the 800 questions and answers available on line over the Internet, RMC and Dallas Gibson communicated the works to the public. These 800 questions and answers were also reproduced in a material form when Dallas Gibson converted them from files stored on Mr Van Tran's compact disks into files stored on Dallas Gibson's laptop and ultimately converted into the practice exams files made available to students through the Icarus College learning management system: see s 21(1A). Pursuant to s 10 , as applicable at the relevant time, "material form", in relation to a work, included "any form (whether visible or not) of storage from which the work ... or a substantial part of the work ... can be reproduced". In the present case, the difficulties discussed in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193 do not arise. 26 Section 14(1)(b) of the Copyright Act provides that, unless the contrary intention appears: [A] reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be. 27 In May 2004, the applicants discovered that Dallas Gibson and RMC, trading as Icarus College, were providing the 800 questions and answers in sections 1 and 2 of MedEntry's practice exams to Icarus College students over the Icarus College website. Icarus College had 45 practice exams that it provided over the Internet to students who paid for UMAT preparation courses. MedEntry's 800 questions and answers were contained in these 45 practice exams. The gist of the applicants' complaint in these proceedings was that their copyright had been infringed by the respondents' reproduction, via the Icarus College website, of the 800 questions and answers principally created by Ann Boyapati for sections 1 and 2 of MedEntry's practice exams.
Case: Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45 ; (1937) 58 CLR 479
Outcome: referred to
In order to attract copyright protection, a literary work that is a compilation must be original. As Dixon J said in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45 ; (1937) 58 CLR 479 at 511: No doubt the expression 'literary work' includes compilation. The definition section says so ... But some original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material. In that case, the High Court held that copyright did not exist in information posted by the race-course proprietors inside the course as to the name and numbers of the starting and scratched horses and the numbers of the winners.
Case: Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491
Outcome: referred to
Whether or not a compilation has sufficient originality to attract copyright depends on the degree of skill, judgment or labour involved in producing it. The Full Court of this Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 (" Desktop ") discussed the concept of originality. Lindgren J, with whom Black CJ agreed, summarised the principles concerning originality (at 532-534) where, amongst other things, his Honour said: 5. One must apply the test of originality to the literary work, including a compilation, in which copyright is claimed to exist, as a whole, rather than dissecting it and applying the test to the individual parts ... 6. The test of originality is whether the work was not copied, but originated from the putative author ... 7. The test is not an 'all or nothing' one but raises a question of fact and degree as to the extent of the putative author's contribution to the making of the particular literary work in questions, in the present case, a compilation ... 8. For this purpose, no particular kind of antecedent work contributed by the putative author is, a priori, to be left out of account, except, perhaps, antecedent work which was undertaken for a purpose or purposes which did not include the making of the literary work at all ... ... 10. ... [T]here is no principle that the labour and expense of collecting, verifying, recording and assembling (albeit routinely) data to be compiled are irrelevant to, or are incapable of themselves establishing, origination, and therefore originality; on the contrary, the authorities strongly suggest that labour of that kind may do so... See also Desktop at 591 per Sackville J, with whom Black CJ also agreed. 43 Sackville J's summary of the relevant principles (at 593) included the following statements: (i) A compilation will ordinarily be an original literary work for copyright purposes if the compiler has exercised skill, judgment or knowledge in selecting the material for inclusion in the compilation ... or in presenting or arranging the material ... (ii) In addition, a compilation of factual information will ordinarily be an original literary work for copyright purposes if the compiler has undertaken substantial labour or incurred substantial expense in collecting the information recorded in the compilation.
Case: Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542
Outcome: cited
Where the skill, judgment and labour involved in making a compilation is trivial or insubstantial, there may be no originality sufficient to attract copyright: see Desktop at 535 per Lindgren J and Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542 at 556 per Merkel J. This is not the case here. The evidence disclosed that the Boyapatis had contributed a sufficient amount of independent skill, judgment and labour to satisfy the requirement for originality.
Case: Interlego AG v Tyco Industries Inc [1988] UKPC 3 ; [1989] AC 217
Outcome: cited
The evidence established that Ann Boyapati created about half the questions and answers in the works in suit from scratch. Whilst the evidence established that she derived the balance of the questions and answers from third party sources, she used these sources in different ways, selecting, adapting and modifying them to varying degrees to suit her purpose of compiling sets of practice exams that simulated the UMAT. Even where she made minimal modification to a pre-existing question, she exercised skill and judgment in selecting the question and including it in either section 1 or 2 , depending on whether it concerned logical reasoning or interaction skills. There was also a degree of skill and judgment involved in organising the sequence and, to a lesser extent, the number of questions in sections 1 and 2 so as to simulate the UMAT. The practice exams that she created were therefore a product of her skill, judgment and labour, combined with that of Ray and Edward Boyapati to the extent that they contributed to the process. The skill, judgment and labour involved were sufficiently substantial to attract copyright: compare Desktop at 599 per Sackville J. The preparation for, and the creation and development of, the practice exams were not easy tasks and involved some considerable time and effort on the Boyapatis' part: compare Interlego AG v Tyco Industries Inc [1988] UKPC 3 ; [1989] AC 217 at 263.
Case: Desktop and Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330
Outcome: cited
The respondents invited me to infer from the evidence that the third party sources would attract copyright since it might be inferred that the sources had been produced in the last fifty years. The respondents cited Desktop and Autodesk Inc v Dyason [1992] HCA 2 ; (1992) 173 CLR 330 in support of the proposition that there could be no originality in a work that derived "from other copyright sources without permission (or acknowledgement)". This was, so they said, due to a lack of originality. These two cases concerned copyright in factual information and, accordingly, are not directly in point in the present case. In any event, I would reject the respondents' basic submission on two bases. First, I accept that, as the applicants submitted, it would be a question of fact in each case as to whether the applicants had infringed copyright in any particular pre-existing work. Secondly, even if copyright in a pre-existing work was infringed, the proposition for which the respondents contend is unsupported by the authorities and authors learned in the field of copyright.
Case: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 
Outcome: cited
In Copyright and Designs (Butterworths, Australia, 2004) at 10,092-10,113 [10,055], James Lahore and Warwick A Rothnie state: Copyright can subsist in a selection of material such as poems, short stories or letters, although the material selected is in the public domain. The copyright is in the selection, not in the component parts of it, and the originality of the work lies in the labour, skill, and discrimination of the author in putting together the material. ... The selection is a new work quite separate from the works selected. Copyright will subsist, for example, in Palgrave's Golden Treasury of Songs and Lyrics although the songs and lyrics may themselves be in the public domain ... The selection by Palgrave was the subject of copyright as a work in itself and irrespective of whether or not copyright subsisted in the individual items selected. ... In the case of compilations that consist entirely of existing material the originality may be found in the selection alone, that is, in the skill labour and judgment involved in making the selection. There are numerous authorities that can be cited in support of the statements in this passage: see, for example, Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 (" Ladbroke (Football) Ltd ") at 277-278 per Lord Reid, 286-287 per Lord Hodson, 289-290 per Lord Devlin, and 292-293 per Lord Pearce. See also S Ricketson and C Creswell, The Law of Intellectual Property: Copyright, Designs &amp; Confidential Information (Lawbook Co, 2 nd ed (revised) 2002) at 7-2064 [7.100].
Case: Redwood Music Ltd v Chappell &amp; Co Ltd [1982] RPC 109 
Outcome: cited
Drummond J also referred to Redwood Music Ltd v Chappell &amp; Co Ltd [1982] RPC 109 at 120 per Goff J and Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508 at 524-525 per Plowman J, both of which supported the proposition that a work might be an original work in which copyright subsisted, even though infringing copyright in an earlier work because it is in part a copy of a substantial part of the earlier copyright work.
Case: Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508 
Outcome: cited
Drummond J also referred to Redwood Music Ltd v Chappell &amp; Co Ltd [1982] RPC 109 at 120 per Goff J and Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508 at 524-525 per Plowman J, both of which supported the proposition that a work might be an original work in which copyright subsisted, even though infringing copyright in an earlier work because it is in part a copy of a substantial part of the earlier copyright work.
Case: Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 
Outcome: referred to
The respondents also submitted that the evidence showed that it was common for providers of preparation courses for the UMAT and the like to reproduce material from other copyright sources without permission or acknowledgment. Relying on Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 (" Concrete ") at 595-596 per Kirby and Crennan JJ, they argued that this "might be said to give rise to an implied licence or right based on industry practice to 'borrow' or reproduce such material (even though it is accepted that there was no direct or other contractual relationship between the applicants and the respondents in relation to the material)". The relevant passage in Concrete referred to the principle established in cases concerned with architectural drawings and plans, that a licence may be implied where architects, artists and other persons prepare written material on the basis that it should be used in a particular manner for a particular purpose. I do not consider that there is any basis for applying this principle to the subject-matter of this case, even if the evidence were as the respondents contended. The evidence supports the proposition that practice exams are written on the basis that they should be used by students enrolling in the providers' courses for the purpose of preparing for the UMAT and not for the purpose of assisting other commercial providers to make their products. 51 It follows from the foregoing that I would reject the respondents' submissions on lack of originality. 52 In view of the conclusions I have reached above, it is unnecessary to consider the applicants' claim in so far as it was based on s 38 of the Copyright Act or involved an alleged breach of moral rights. In any event, at trial, the applicants did not strenuously press these alternative bases for the respondents' liability.