mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310
Outcome: cited
Callinan J acknowledged that there were Canadian authorities to the effect that caveats could not be lodged to protect Aboriginal title under the Torrens system. However, the decision of the Supreme Court of Canada in Paulette v The Queen [1977] 2 SCR 628, turned on the fact that the land had never been granted by the Crown and was not the subject of any registered title (see Paulette v The Queen, at 630). The decision therefore said nothing about whether native title rights and interests could be protected by caveat after a Crown grant had issued in respect of the land. His Honour considered that other Canadian decisions turned on the particular provisions of the Torrens statutes in force: see Uukw v British Columbia (1987) 37 DLR (4 th ) 408, followed in Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 (both decisions of the British Columbia Court of Appeal).
Case: Uukw v British Columbia (1987) 37 DLR (4 th ) 408
Outcome: cited
Callinan J acknowledged that there were Canadian authorities to the effect that caveats could not be lodged to protect Aboriginal title under the Torrens system. However, the decision of the Supreme Court of Canada in Paulette v The Queen [1977] 2 SCR 628, turned on the fact that the land had never been granted by the Crown and was not the subject of any registered title (see Paulette v The Queen, at 630). The decision therefore said nothing about whether native title rights and interests could be protected by caveat after a Crown grant had issued in respect of the land. His Honour considered that other Canadian decisions turned on the particular provisions of the Torrens statutes in force: see Uukw v British Columbia (1987) 37 DLR (4 th ) 408, followed in Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 (both decisions of the British Columbia Court of Appeal).
Case: Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121 CLR 177
Outcome: discussed
The latter proposition is illustrated by Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28 ; (1969) 121 CLR 177. The High Court held there that the Mining Act 1906 (NSW) should be construed, in the circumstances of the case, not to interfere with a landowner's right to carry on mining operations on his own land. Barwick CJ (at 181) applied 'the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain ... The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament intended to implement'. See, too, at 182 per Menzies J. 731 In the light of this rule of construction, the Self-Government Act and the Self-Government Regulations cannot be interpreted as empowering a Territory Minister to undertake public works on freehold or leasehold land (held by persons other than the Crown or its instrumentalities) without consent and without affording adequate compensation. If a Minister purported to authorise such works to be undertaken, his or her conduct would be inconsistent with the rights of the freeholder or leaseholder and would fall outside the executive powers of the Territory. If works were carried out on the freehold or leasehold land without permission, they could not extinguish or impair the title of the freeholder or leaseholder in the absence of specific legislation making provision to that effect. (Such legislation, if enacted by the Legislative Assembly, might also raise issues of compatibility with s 50(1) of the Self-Government Act .) 732 If this reasoning is correct, the Self-Government Act and the Self-Government Regulations would have the practical operation and effect of discriminating against native title holders. In the absence of s 10(1) of the RD Act , those provisions would authorise Territory Ministers to undertake public works on Crown land, including land in respect of which Aboriginal people hold native title rights and interests. If the works were inconsistent with the continued existence of native title rights and interests, those rights and interests would be extinguished and no compensation (leaving the NTA to one side) would be payable in respect of the extinguishment. But the Self-Government Act and the Self-Government Regulations , construed in the manner I have explained, would not authorise the Territory Ministers to undertake public works that could extinguish or interfere with other titles, such as freehold or leasehold estates carrying the right to exclusive possession.
Case: Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373
Outcome: followed
In Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 (' Native Title Act Case '), the High Court observed (at 453) that s 11 removes the vulnerability of native title to: 'defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.' However, the Court also said (at 454) that an: 'act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act . Such an act neither needs nor is given force and effect by the Act'. This comment suggests that s 11(1) is intended to have a prospective effect only, a view supported by the Court's observation (at 468) that the effect of the provision is that: ' any future State law which purports to extinguish native title contrary to the Act is inoperative by reason of s 109 of the Constitution ' . (Emphasis added.) 35 The Native Title Act Case was decided before the NTA was extensively amended in 1998. The amendments include the insertion of Div 2B of Part 2 into the legislation, which provides for confirmation of past extinguishment of native title. In its original form, s 11(2) provided that legislation enacted after 1 July 1993 by the Commonwealth, a State or a Territory, could only extinguish native title in accordance with Div 3 of Part 2 (which deals with future acts) or by validating past acts in relation to native title. Following the 1998 amendments, s 11(2) provides that legislation enacted in accordance with Div 2B of Part 2 of the NTA is one of the permissible means by which native title can be extinguished after 1 July 1993.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: followed
Division 2B of Part 2 of the NTA was inserted by the NTAA 1998 and came into force on 30 September 1998. Division 2B is intended to confirm past extinguishment of native title by certain acts which were valid and which were not struck at by the RD Act : Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward (HC) ') at [8]. Such acts include those which predated the RD Act, such as the pastoral leases over the Application Area, and those which have been validated by the NTA (including by the operation of Div 2 of Part 2 and its State and Territory analogues). Division 2B confirms that certain acts attributable to the Commonwealth that were done before 23 December 1996 completely or partially extinguished native title: s 23A(1). The acts having that effect may be: (a) 'previous exclusive possession acts' (involving, for example, the grant of freehold estates or leases conferring exclusive possession); or (b) 'previous non-exclusive possession acts' (involving, for example, grants of non-exclusive pastoral leases): s 23A(2), (3). 51 Division 2B allows the States and Territories to legislate, in respect of 'previous exclusive possession acts' and 'previous non-exclusive possession acts' attributable to them, for the extinguishment of native title in the same way as is done under Div 2B for acts attributable to the Commonwealth: s 23A(4). The Territory has enacted such legislation: Validation Act , Parts 3B, 3C. 52 Section 23J of the NTA (within Div 2B) provides as follows: ' Entitlement (1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act. Commonwealth acts (2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth. State and Territory acts (3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.' (Emphasis added.)
Case: Williams v State Transit Authority of NSW [2004] NSWCA 179 ; (2004) 60 NSWLR 286
Outcome: cited
The effect of the statutory exceptions to indefeasibility was that a wide range of unregistered interests in land received protection from what otherwise would be the indefeasible title conferred on the first registered proprietor of the fee simple estate, by virtue of s 69 of the Real Property Act . The following interests were protected from s 69 of the Real Property Act : the interest of any person in adverse possession of the land (or part of it); an 'omitted' easement (which expression encompasses an easement which is simply not on the register: Dobbie v Davidson (1991) 23 NSWLR 625, at 627; Williams v State Transit Authority of NSW [2004] NSWCA 179 ; (2004) 60 NSWLR 286 at [105] [109], per Mason P); the interest of a proprietor of land included in a certificate of title by wrong description; public rights of way and easements enjoyed by the public; and a short-term lease held under an unregistered instrument or agreement.
Case: Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211
Outcome: cited
Counsel for Mr Lenzo made written closing submissions about the admissibility of the evidence of Messrs Sammon, Begley and Padmanabha. He relied upon the decision of the Full Court in Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211. The Court there upheld the Commissioner's application of Pt IVA. Both Hill and Carr JJ referred to the significance of poor projected financial returns from the particular scheme. 82 The case concerned an investment in a tea tree oil farming project. The Court held, having regard to the eight matters listed in s 177D(b) of the ITAA 1936, that the taxpayers had entered into and carried out the investment scheme for the purposes of obtaining a tax benefit. The Court had regard to the commercial uncertainty of the scheme in concluding that its tax purposes predominated over its commercial purposes. 83 In considering the manner in which the scheme was entered into or carried out for the purposes of s 177D(b)(i), Hill J observed that the commercial investment in tea trees was attendant with risk. Without the tax benefits which the prospectus predicted "the commercial returns were far from encouraging" (at [75]). Carr J, in considering the "form and substance of the scheme" for the purpose of s 177D(b)(ii) referred to "what can only be described as miniscule projected returns over a long period of time from a venture which on all the evidence involved significant risk so described in the Prospectus" (at [216]).
Case: Calder v Commissioner of Taxation (2005) 59 ATR 655
Outcome: cited
At first instance in Calder v Commissioner of Taxation (2005) 59 ATR 655, Nicholson J relied upon expert evidence of the poor projected returns (when properly calculated before tax and before finance) as a significant factor attracting the application of Pt IVA: However as to factor (2) Mr Langridge's evidence was that the Project relied upon the tax deductibility and effect of the initial payments and the gearing up provided by the loan to show any rate of return. In those circumstances it cannot be objectively found that the dominant purpose of the applicant's entry into the scheme was to enable the applicant to make a commercial investment: the tax benefit was the key to the commerciality of the scheme. 85 Counsel for Mr Lenzo submitted that the evidence of Messrs Sammon and Begley confirmed that the internal rate of return forecast was 13.82% per annum before tax and before finance where the applicant pre-pays the maintenance and rent fees. Their unchallenged evidence was that the projected returns from the project were commensurate with the risks. Mr Sammon's unchallenged evidence was that the project was an "Investment Grade" investment without any reliance being placed on tax benefits and that the project showed strong financial returns on a before tax and before finance basis. 86 Counsel also pointed to Mr Padmanabha's evidence of an increase in demand for Indian sandalwood and the increase in average price. He also submitted evidence that the EKS project was suitable to Mr Lenzo's particular financial circumstances and that it did not rely on tax benefits and financing to show an acceptable return was relevant to whether Mr Lenzo could be regarded as having had a dominant tax purpose. Such evidence, it was submitted, was an objective fact to which regard must be had in considering whether Mr Lenzo had a dominant tax purpose and, in particular, in considering the manner in which the scheme was entered into or carried out, the form and substance of the scheme and the change in the financial position of Mr Lenzo that had resulted, would result, or might reasonably be expected to result, from the scheme.
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: referred to
question arises as to whether this later correspondence, which includes correspondence with third parties, and the statements in the autobiography, may be taken into account to determine the question of Ms Sinclair's intention when she submitted the work to the Victorian Girl Guides in 1934: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550 551 per Gleeson CJ. The question of law which arises in relation to the entry of "Kookaburra" in the competition in 1934 is one of construction of the rules of the competition. The question is whether, in the event that Ms Sinclair's entry was governed by the rules, the rule which provided that all matter entered was to become the property of the Victorian Girl Guides was effective to assign the copyright in the work to that Association. The deeds of assignment of copyright The remaining issue arises from the assignments of copyright obtained by Larrikin from the Public Trustee and the Libraries Board. It is true that in XIVth Commonwealth Games at 550 551, Gleeson CJ had regard to subsequent communications between the parties as a factor in determining whether the parties to the alleged contract evidenced an intention to make a concluded bargain. But that proposition is limited to communications between the actual parties to the alleged contract. His Honour stated that the position is not so clear with respect to internal memoranda or communications with third parties. Here, most of the communications referred to were between Ms Sinclair and third parties. The documents were contained in a joint tender bundle and were admitted without objection. Nevertheless, I have come to the view that they ought not to have been admitted as evidence. To admit them would be contrary to the principle stated in Cross on Evidence at [39290] that: [T]he parties' subsequent conduct may be relied upon to establish the existence of [the] contract ... This statement emphasises the fact that it is the communications between the parties themselves which are admissible, rather than statements made by one party to a stranger to the alleged contract. Even if the evidence of communications with third parties were admissible, it could be given little weight because the communications took place 20 to 40 years after the date on which "Kookaburra" was entered in the competition.
Case: Interstate Parcel Express Co Proprietary Limited v Time-Life International (Netherlands) B.V. [1977] HCA 52 ; (1977) 138 CLR 534
Outcome: referred to
there is a well-known distinction in the law of copyright between the incorporeal right to the intellectual property, and the right to the physical property in a work: Interstate Parcel Express Co Proprietary Limited v Time-Life International (Netherlands) B.V. [1977] HCA 52 ; (1977) 138 CLR 534 at 550. It seems to me that the word "matter" is more apt to describe the physical property consisting of the manuscripts rather than the copyright in the works. Second, there are good practical reasons why the Victorian Girl Guides might have wanted to retain the material object of the works, rather than become a bailee. The works would be likely to have been needed for archiving purposes and the persons conducting the competition would hardly have been likely to want the responsibility of returning the physical manuscripts to the entrants.
Case: Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134
Outcome: referred to
the recitals to the tripartite Deed were "informal admissions". As was pointed out by J. D. Heydon in Cross on Evidence at [33420], such admissions may always be contradicted or explained by the maker, and it is for the Court to determine on the evidence what weight is to be given to such admissions. This was also made clear by the High Court in Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134 where Rich, Dixon, Evatt and McTiernan JJ said at 138 139: No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him. But such an admission may indicate a state of mind varying from a firm belief based upon a thorough investigation ... down to a wavering preference for one of two or more possible hypotheses none of which have been tested or determined. It is apparent that the admissibility of the evidence must be distinguished from its sufficiency to establish or support an affirmative conclusion in favour of the party who tenders it, when the burden of proof lies upon that party. It does not follow that, because such evidence is admissible, it is enough to prove the issue. Here, I accept the evidence of Mr Lurie as to the circumstances in which he signed the Tripartite Deed. It is obvious from the correspondence which preceded the Deed that Larrikin was a stranger to the dispute between the Public Trustee and the Libraries Board as to the ownership of the copyright. He accepted the Deed in good faith. It was of no moment to him because it provided that Larrikin obtained title through the Libraries Board.
Case: Murray v King (1984) 4 FCR 1
Outcome: referred to
is true, as the respondents submitted, that the authorities establish that no particular form of words is necessary to effect an assignment of copyright: see Murray v King (1984) 4 FCR 1 at 7, 13. However, in my view, this does not overcome the objections that I have listed above. This is because in order for the authorities such as Murray v King to apply, there must be some intention to assign copyright. As I have indicated above, in my view, it cannot be inferred on the evidence that either Ms Sinclair or the Victorian Girl Guides had the intention to effect an assignment of copyright. In any event, I do not consider that the words in question in the present case are sufficient to disclose, on an objective consideration, an intention to effect an assignment of copyright. The effect of Mr Catterns' submissions was that, in the Tripartite Deed of 14 March 2000, the Public Trustee and Larrikin admitted that the earlier Deed of Assignment was ineffective.
Case: Nominal Defendant v Owens (1978) 22 ALR 128
Outcome: referred to
test is that there must be shown to be more than "conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture": see Nominal Defendant v Owens (1978) 22 ALR 128 at 132, and the authorities there referred to. Here, in the absence of an entry form or any evidence that Ms Sinclair had knowledge of the terms of the competition on submitting her entry, it is equally probably that Ms Sinclair learned of the existence of the competition without seeing the circular or the rules. She had an active interest in the Victorian Girl Guides' movement and it is equally probable that she learned of the competition through her association with the Movement. It is also equally probable that there were no formal documents constituting entry forms and that entries were submitted informally, by lodgement of the composition, the entry fee, and details of the entrant's name and address, if not already known to the Victorian Girl Guides.
Case: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197
Outcome: referred to
support can be gained from the well-known "ticket cases" in the law of contract. Those cases establish that where an exemption clause is contained in a ticket, and the other party is not actually aware of the terms of the clause when the contract was made, the party seeking to rely on it cannot do so unless, at the time when the contract was made, reasonable notice was given to the other party: see Seddon and Ellinghaus, Cheshire and Fifoot's Law of Contract (9 th Australian Edition, 2008) at [10.28] and [10.70]; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229. This principle has no application here, because as the authors of Cheshire and Fifoot observe at [10.71], it is necessary to determine with some precision at what point the contract was made. That cannot be done in the present case. What the composers and EMI would need to establish is that Ms Sinclair submitted her entry after the publication of the circular or after the July edition of Matilda and that each of those publications constituted reasonable notice. Having regard to Ms Sinclair's close connection with the Victorian Girl Guides, it is mere conjecture to say that this is what happened. It is equally probable that she heard of the competition by word of mouth and submitted her entry before the publication of those documents. Accordingly, it has not been established on the evidence that Ms Sinclair entered into a contract in writing on the terms contained in the circular, or, at least, that the contract included the term which provided for all "matter" to be the property of the Victorian Girl Guides. It follows that there was no assignment in writing to satisfy the requirements of s 5(2) of the British Copyright Act .