mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Street v Mountford [1985] UKHL 4 ; [1985] AC 809
Outcome: applied
think it is quite clear that the bankrupt's possession of the property beyond completion of the contract was as a licensee of, and not as a tenant from, the applicants and that that situation did not change at any time before the date of bankruptcy. My reasons for being of this view are as follows: (1) The circumstances in which the right of possession was granted as a vendor, from the purchaser, of the property where the common intention of the parties, so far as it can be discerned from the relevant terms of the contract, was to allow the vendor time (six months) to remove his chattels from the property; hence the nominal 'rent' of $50 per week. True, there was no evidence as to what a market rent would be, but having regard to the purchase price of the property ($850,000), the improvements and the business being carried on from the property, 'rent' of $50 per week could not be characterised as anything but 'nominal'. (2) The terms of Special Condition 5 (see [10] above), in particular: (i) The use of the word 'rent' in the first sentence has no characterisation consequences of its own; for example, many chattel bailments use the word 'rent' to describe the consideration payable for the bailment when, strictly speaking, it is a hiring charge. The first sentence is totally neutral in indicating whether what is granted is a licence or a lease. (ii) More importantly, the right of the purchaser (the applicants) to enter onto the property is unlimited as to the purpose, frequency and time of entry. It is inconsistent with any claim or entitlement of the vendor (the bankrupt) to exclusive possession, which is the point of distinction between a licensee and a tenant: see Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222 per Windeyer J; Street v Mountford [1985] UKHL 4 ; [1985] AC 809 at 827A E per Lord Templeman with whom the other of their Lordships agreed. (iii) The third sentence, which provides that if the vendor does not vacate the property 'at the expiration of six months (following settlement) the rental shall increase to $1,000 per week plus GST', informs the purpose of allowing the vendor to remain in possession beyond completion time in which to remove his chattels from the property and an ongoing weekly penalty if that task is not completed within six months of completion of the contract. These are the words of license, not demise and no covenant for quiet enjoyment could be implied.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
a contravention of s 52 of the TP Act is made out, the Court clearly has power in appropriate circumstances to grant the injunctive relief which is applicable, and similarly has power under s 21 of the Federal Court of Australia Act 1976 (Cth) to grant the declaratory relief which is, or may be, appropriate, such jurisdiction having been expressly conferred by s 86 of the TP Act: see eg Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564. See also s 163A of the TP Act. Plainly enough, for conduct to contravene s 52, it must convey a representation which is misleading or deceptive, or is likely to mislead or deceive. Putting aside the issue concerning the ticket machines, the council asserts that each of the ACF Notices conveyed the following representations: that the ACF Notices were issued or authorised by the Council, or that ACF was associated or affiliated with the Council; that the ACF Notices were issued for the recovery of a fine, expiation fee or other penalty imposed by law; that ACF was authorised by law to recover a fine, expiation fee or other penalty imposed by law; and that the claim in the ACF Notice was not in respect of an alleged contractual debt. As the above discussion indicates, the dispute in this case turns upon whether those alleged representations were made. Neither ACF nor Park Fast have contended that the ACF Notices, if they conveyed those representations, were true. The case therefore is whether or not those representations were made.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: referred to
or not a representation is made, and is misleading or deceptive or likely to mislead or deceive, is a matter to be determined objectively by the Court. Conduct is misleading or deceptive only if it induces or is capable of inducing error; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ). The objective judgment is made in relation to the persons or class of persons who may be mislead by the relevant conduct. In Parkdale Gibbs CJ said at 199: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or [sic] course depend on all the circumstances. It is not necessary to prove that the conduct in question actually deceived or mislead anyone: Parkdale at 198 ; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco ). Conduct is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: cited
is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number.
Case: Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348
Outcome: cited
is not necessary to prove an intention to mislead or deceive. However, proof of an intention to deceive has a very strong evidentiary value: see Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 394. Hence, the intention may be particularly inferred by the copying of a symbol or part only of a symbol used by another party: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [121]. Of course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Outcome: cited
is not necessary to prove an intention to mislead or deceive. However, proof of an intention to deceive has a very strong evidentiary value: see Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 394. Hence, the intention may be particularly inferred by the copying of a symbol or part only of a symbol used by another party: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [121].
Case: Duracell Australia Pty Ltd v Union Carbide Australia Ltd [1988] FCA 40 ; (1988) 10 ATPR 49 ,856
Outcome: cited
similarities in the fields in which the two businesses operate obviously will increase the likelihood of deception if the names and symbols are similar. Subsequent subtle changes to name or get-up are unlikely to correct the deception of members of the public who have already been exposed to the initial get-up. To the contrary, the impression originally gained might be reinforced by the repetition of a closely similar message not corrected: see Duracell Australia Pty Ltd v Union Carbide Australia Ltd [1988] FCA 40 ; (1988) 10 ATPR 49 ,856 at 49,861. However, that is a question of fact to be determined in the particular circumstances.
Case: The Kettle Chip Company Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152
Outcome: cited
is also important to note that it is the extent of scrutiny which may be given to a communication by members of the target audience which may inform the question whether s 52 has been breached by the use of a symbol which may create the same immediate impression as the symbol used by the body with the established representation, and established reputation, notwithstanding differences which are apparent when the two are inspected closely: The Kettle Chip Company Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152 at 161-2; Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd (1994) ATPR 41-308 at 42,126 and 42,133. CONSIDERATION The ACF Notices
Case: Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd (1994) ATPR 41-308
Outcome: cited
is also important to note that it is the extent of scrutiny which may be given to a communication by members of the target audience which may inform the question whether s 52 has been breached by the use of a symbol which may create the same immediate impression as the symbol used by the body with the established representation, and established reputation, notwithstanding differences which are apparent when the two are inspected closely: The Kettle Chip Company Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152 at 161-2; Sterling Winthrop Pty Ltd v R &amp; C Products Pty Ltd (1994) ATPR 41-308 at 42,126 and 42,133. CONSIDERATION The ACF Notices
Case: Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37
Outcome: cited
course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.
Case: Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48
Outcome: cited
course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.
Case: Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474
Outcome: cited
course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.
Case: Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752
Outcome: cited
course, any notice by ACF based upon breach of Park Fast's parking conditions necessarily had certain content. But there is no good reason offered for why the name Adelaide City Fines was chosen, as I do not accept Mr Lester's explanation for why it was chosen. There is no monopoly in the words Adelaide City. But here, ACF or its promoters selected a name which had those words and a descriptive noun in its name which carries particular connotations, but did so to enter a field of activity in which the Council for many years had carried on the function of imposing fines by its Expiation Notices: cf Aerospatiale Societe Nationale Industrielle v Aerospatiale Helicopters Pty Ltd (1986) 11 FCR 37. The general layout and presentation of the first ACF Notice reflects closely that of the first Expiation Notice. It did not need to do so. The earlier draft document, contrary to Mr Lester's evidence, clearly was prepared by adopting the first Expiation Notice and I infer that the first ACF Notice evolved from that draft. There is no other explanation for the choice of the general layout and presentation of the first ACF Notice. Consequently, that intention supports an inference that it was effectuated so as to lead to the contravention alleged: see Campomar at [33]; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 per Gummow J at 394; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Ltd [1989] FCA 272 ; (1989) 89 ALR 48 at 69; Apand Pty Ltd v The Kettle Chip Company Pty Ltd (1994) 52 FCR 474 at 496. Indeed, in Nylex Corp Ltd v Sabco Ltd (1987) ATPR 40-752 at 48,179 Woodward J said where there is clear evidence of an intention to deceive, a court will readily find a breach of s 52 of the TP Act.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: applied
first function of the Tribunal in a review of a decision whether to grant a protection visa is to identify the claims made by the applicant for review. Correct identification of a claim is essential to enable the Tribunal effectively to exercise the jurisdiction which the Parliament has confided it to exercise under s 414(1) of the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394-395 [26] - [27] per Gummow and Callinan JJ. What the Tribunal did was to set out in a section headed, 'Claims and Evidence', the fact that it had before it the Department's file. It then referred to the original application and to her claim that she feared she may be persecuted if she returned to China as she now practised Falun Gong and that she had been aware that many Falun Gong practitioners in China had been arrested. The Tribunal recorded that the appellant had started practising Falun Gong in May 1998 and had attended the Convention at that time. It referred to her insisting on attending Darling Harbour every Saturday to perform exercises and that she read books by the founder of Falun Gong and obeyed Falun Gong's laws. It recorded that she had attended other public outing of the Falun Gong organisation in Australia.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259
Outcome: followed
is important in considering the reasons of the Tribunal that the court should not be concerned with the looseness in language or unhappy phrasing. Its reasons are not to be construed minutely and with an eye keenly tuned to a perception of error. As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, the reality is that the reasons of administrative decision-makers are meant to inform and not to be scrutinised upon over zealous judicial review by seeming to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Relevantly for seeking the present context, their Honours said: '... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.' An administrative decision which involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ at 618 [63] McHugh and at 646-647 [152] per Hayne J. In the latter case the Tribunal had failed to have drawn to its attention at the time it made its decision a communication from the applicant for review that he was unable to attend because of illness. It later embarked on a further review of his case and the court upheld that exercise on the ground that the Tribunal initially had not performed a review at all because it failed to have regard to the applicant for review's communication to it and had not decided in accordance with the Act.