mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pittevil &amp; Co v Brackelsberg Melting Processes Ltd (1931) 49 RPC 23
Outcome: followed
The issue arose again in Pittevil &amp; Co v Brackelsberg Melting Processes Ltd (1931) 49 RPC 23. At this time the relevant act was the Patents and Designs Act 1907 1919 (UK), s 36 of which had been s 32 of the 1907 Act. The only relevant amendment to that section was that the words "any legal rights of the person making such threats" had been replaced by "the patent". It was argued that Challender v Royle did not apply since the term "patent" encompassed both inventions and alleged inventions. Thus, it was argued, the section applied even if the patent was invalid and so the validity of a patent could not be challenged in a threats case. The Court of Appeal did not accept this argument, holding that amendments otherwise having the effect of broadening the scope of the section should not be read as cutting down a right established by judicial authority, particularly since the amendment was contained only in the schedule to the amending act. Challender v Royle was therefore applied. 169 No cases have considered whether what had been said in Challender and Pittevil applied to the 1955 Act. However the first edition of D R Shanahan, Australian Trade Mark Law and Practice (1982) at 383 cited Pittevil , and concluded that "it is necessary that the registration be valid and it appears to be open to the plaintiff to plead the invalidity of the registration without actually seeking revocation". The present Act continued, in sub-s (4), the highlighted requirements of s 124 of the 1955 Act cited above. 170 The position established by Challender v Royle , that a defendant in a threat case may argue invalidity of the registration, is supported by sound policy considerations, as the passage from Cotton LJ cited at [166] demonstrates. It seems unlikely that subsequent re-workings of the original legislative provision, which have expanded and clarified the right to bring a proceeding where a threat is made, would have displaced what was said in Challender v Royle without clear words. Both the report of the Attorney-General's committee into the 1955 Act ("Report of the Committee Appointed by the Attorney-General of the Commonwealth to Consider what Alterations are Desirable in the Trade Marks Law of the Commonwealth (1954)" and the Explanatory Memorandum for the current Act are silent on the question. On their face, the meaning of the words in s 129(4)(a) - "the trade mark is registered" - is clear. However, when the history of the threat provision is examined, there is no basis for saying that any version of the trade mark legislation has changed the position set out in Challender v Royle and Pittevil . Further, the words in the emphasis in [168] "the acts ... constitute ... an infringement of the trade mark" seem to pick up the concept in the passage from Cotton LJ's reasons set out at [166]. In those circumstances the words should be understood as meaning "the trade mark is validly registered". It follows that the applicants have failed to make out par (a) of sub-s (4), since the trade mark is invalid.
Case: J H Coles Pty Ltd v Need [1933] HCA 48 ; (1933) 49 CLR 499
Outcome: distinguished
In this connection the respondents rely on J H Coles Pty Ltd v Need [1933] HCA 48 ; (1933) 49 CLR 499. There the appellant (Coles) and Need entered into an agreement that Need would open a shop and conduct a business therefrom under Coles' trade name, the business being similar to that conducted by Coles. Need was to buy all his stock from Coles at a concession price. No time was fixed for the duration of the agreement. Coles' name was affixed to the shop front. Initially Need purchased all his stock from Coles, but after a while Coles was unable to supply the whole of Need's requirements, and he obtained some of his stock elsewhere. After about three years, his purchases from Coles were negligible. Coles was then in voluntary liquidation. Its liquidator required Need to remove the Coles trade name from his shop, and on his refusal, brought an action to restrain him from continuing to use the name. 175 Irvine CJ granted the injunction. His Honour found that Coles had granted Need a licence to use its name, that no period had been fixed for the grant, that the licence had been duly determined by notice, the implied term of the licence being that it should last as long as the buying and selling on the terms and prices arranged should go on, and that these matters having ceased, Coles was entitled to revoke the licence. 176 The Full Court upheld the Chief Justice's decision. Before the Full Court Need contended that he had acquired by assignment of Coles' goodwill a right to use its trade name permanently or indefinitely. This is the Court rejected, confirming the Chief Justice's conclusion that Need had no more than a licence to use the name, which had been revoked.
Case: Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620
Outcome: applied
The question is whether the 11 March 2005 letter, summarised at [39(pp)], evinces an intention on Harold and Saul's part no longer to be bound by the agreement or to fulfil the agreement only in a manner substantially inconsistent with their obligations and not in any other way: Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620 at 625-627 and Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 at 33. The letter was not about any agreement between the parties, whether that asserted by the applicants or the more limited agreement that Harold and Saul could use the Squires Loft name. It was a complaint that Lionel and Joel had engaged in conduct that infringed Saul's trade mark. It demanded that they refrain from dealing with or seeking to licence the mark in relation to the provision by a third party of restaurant or catering services without their consent. It may have been a bold letter written on the dubious basis of Saul's registration of the mark. But it was not a repudiation or renunciation of whatever agreement existed between the parties.
Case: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17
Outcome: applied
Finally, I accept the respondents' submission that in the context of licensing and franchising, business people do not "give away" their intellectual property. The very core of licensing and franchising is the owner's retention of ownership and the grant to the licensee or franchisee of the right to use the property. 76 It follows from what I have said at [61] to [75] that I do not accept the applicants' submission that the Court "can readily find an express agreement upon the common ownership of the 'Squires Loft' name ... in accordance with the evidence of Saul and Harold". Nor do I accept that Lionel and Joel's evidence that Harold and Saul could use the name in the City restaurant for as long as they wished, though there was no agreement that the parties would be joint owners of the name, was "tailored". 77 The applicants also point to various matters that they contend should lead the Court to infer that an agreement in terms of par 3(f) was made. I will assess them one by one, though I will need eventually to view them as a whole. 191 The question is whether the 11 March 2005 letter, summarised at [39(pp)], evinces an intention on Harold and Saul's part no longer to be bound by the agreement or to fulfil the agreement only in a manner substantially inconsistent with their obligations and not in any other way: Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620 at 625-627 and Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 at 33. The letter was not about any agreement between the parties, whether that asserted by the applicants or the more limited agreement that Harold and Saul could use the Squires Loft name. It was a complaint that Lionel and Joel had engaged in conduct that infringed Saul's trade mark. It demanded that they refrain from dealing with or seeking to licence the mark in relation to the provision by a third party of restaurant or catering services without their consent. It may have been a bold letter written on the dubious basis of Saul's registration of the mark. But it was not a repudiation or renunciation of whatever agreement existed between the parties.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 , 38 AAR 55 at [29] ; Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 , (2008) 249 ALR 762 at [99] .
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 , 38 AAR 55
Outcome: cited
question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 , 38 AAR 55 at [29] ; Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 , (2008) 249 ALR 762 at [99] .
Case: Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102
Outcome: cited
fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102 ; Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579 at [25] ; Wecker at [96].
Case: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139
Outcome: cited
fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102 ; Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579 at [25] ; Wecker at [96].
Case: Repatriation Commission v Nation (1995) 57 FCR 2538 AAR 55
Outcome: cited
to ss 44(4) and (5) of the AAT Act and s 28 of the Federal Court of Australia Act 1976 (Cth) the Court has power to remit the case for re-hearing by the Tribunal, which may be confined or at large: Repatriation Commission v Nation (1995) 57 FCR 25. I consider that the matter as a whole ought be remitted to the Tribunal differently constituted for determination according to law. It is unnecessary, given this conclusion, to consider the other questions of law raised in the application. The application will accordingly be allowed. I will hear the parties on the question of costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 09 February 2009 Counsel for the Applicant: Mr L A Tsaknis Solicitor for the Applicant: Cocks Macnish Counsel for the Respondent: The Respondent appeared in person Date of Hearing: 15 December 2008 Date of Judgment: 09 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/59.html
Case: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Outcome: cited
fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102 ; Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579 at [25] ; Wecker at [96].
Case: Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579
Outcome: cited
fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102 ; Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579 at [25] ; Wecker at [96].
Case: Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 , (2008) 249 ALR 762
Outcome: cited
question whether there is any evidence of a particular fact is a question of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 , 38 AAR 55 at [29] ; Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 , (2008) 249 ALR 762 at [99] . The fact that the Tribunal is not bound by the rules of evidence does not free the Tribunal to make a decision upon evidence which lacks rational probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 4 ALD 139 at 155-6; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232 ; (1985) 8 ALN N102 ; Rodriguez v Telstra Corp Ltd [2002] FCA 30 ; (2002) 66 ALD 579 at [25] ; Wecker at [96].
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
The appellant apparently did not refer to any particular difficulties in living in Manila. However, the Tribunal does not report asking him about that topic or about the practicality of relocation or his fear of persecution if relocated. As far as the reasons for decision go, the Tribunal had no information from the appellant on those points. It is to be noted that the appellant said that he, in effect, disguised that he was Muslim (cf Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473). It does not follow that there would not be persecution of Muslim male homosexuals in Manila simply because it is not predominantly a Muslim city. Again, it may well be that a properly directed Tribunal will find that relocation is an answer to the claim. I am not satisfied that such a finding is inevitable. 21 The appeal will be allowed; the orders of the Federal Magistrates Court will be set aside; and, in lieu thereof, it will be ordered that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for further decision according to law. The respondent Minister will pay the costs (if any) of the appellant of this appeal and of the Federal Magistrates Court proceeding. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 29 April 2008 The Appellant appeared in person Counsel for the First Respondent: Mr C Mantziaris Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 1 November 2007 Date of Judgment: 29 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/556.html
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 , (2003) 77 ALJR 1088
Outcome: applied
The gravamen of the appellant's claim for protection was his special position as a male Muslim homosexual in the Philippines. The Tribunal accepted that he was a male Muslim homosexual. However, it did not expressly refer to the consequences of that. Furthermore, the appellant is correct in submitting that none of the country information identified by the Tribunal referred to that circumstance. The Tribunal did not have to expressly deal with every matter raised by the appellant. However, it was obliged to deal with a discrete basis for protection put forward by him ( Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 , (2003) 77 ALJR 1088 at [24] , [95]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at [42] ). Put another way, the Tribunal did not identify the correct social group. Considering the greater class does not necessarily deal with the lesser ( SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 at [35] [42]). The appellant's contention was, and is, that a male Muslim homosexual was in a different, and more vulnerable, position than other male homosexuals in the Philippines. That contention was not considered.
Case: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244
Outcome: followed
The gravamen of the appellant's claim for protection was his special position as a male Muslim homosexual in the Philippines. The Tribunal accepted that he was a male Muslim homosexual. However, it did not expressly refer to the consequences of that. Furthermore, the appellant is correct in submitting that none of the country information identified by the Tribunal referred to that circumstance. The Tribunal did not have to expressly deal with every matter raised by the appellant. However, it was obliged to deal with a discrete basis for protection put forward by him ( Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 , (2003) 77 ALJR 1088 at [24] , [95]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at [42] ). Put another way, the Tribunal did not identify the correct social group. Considering the greater class does not necessarily deal with the lesser ( SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 at [35] [42]). The appellant's contention was, and is, that a male Muslim homosexual was in a different, and more vulnerable, position than other male homosexuals in the Philippines. That contention was not considered.
Case: SZBJH v Minister for Immigration and Citizenship [2008] FCA 501
Outcome: followed
The gravamen of the appellant's claim for protection was his special position as a male Muslim homosexual in the Philippines. The Tribunal accepted that he was a male Muslim homosexual. However, it did not expressly refer to the consequences of that. Furthermore, the appellant is correct in submitting that none of the country information identified by the Tribunal referred to that circumstance. The Tribunal did not have to expressly deal with every matter raised by the appellant. However, it was obliged to deal with a discrete basis for protection put forward by him ( Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 , (2003) 77 ALJR 1088 at [24] , [95]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 at [42] ). Put another way, the Tribunal did not identify the correct social group. Considering the greater class does not necessarily deal with the lesser ( SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 at [35] [42]). The appellant's contention was, and is, that a male Muslim homosexual was in a different, and more vulnerable, position than other male homosexuals in the Philippines. That contention was not considered.
Case: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 ; (2006) 81 ALJR 475
Outcome: cited
It is submitted for the respondent Minister that the findings by the Tribunal are inconsistent with the appellant fearing persecution as required by s 91R of the Act. It is submitted that neither serious harm nor systematic and discriminatory persecution was or could be established, referring to VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 ; (2006) 81 ALJR 475. 18 It is not clear that this point was raised before the Federal Magistrates Court, and is not raised by notice of contention. In any event, the point is not decisive. In my opinion, if the appellant's case is taken at its highest, s 91R could possibly be met. He paints a serious picture as to the plight of a Muslim homosexual male suffering from crushing oppression, including psychological harm, physical harm and the threat of physical harm, with no effective State protection. I am not satisfied the Tribunal squarely dealt with that case. As I have said, the manner in which it dealt with particular incidents may have been coloured by the failure to focus upon the essence of the appellant's claim. Whilst the appellant may well have difficulty in persuading a properly directed Tribunal that the requirements of s 91R are met, I cannot rule out that possibility. 19 It is also submitted by the Minister that the Federal Magistrate was correct in holding that the relocation finding by the Tribunal was decisive. The difficulty with that argument is that the Tribunal did not concentrate upon the position of a Muslim male homosexual from his family and his tribe in Manila or elsewhere other than Mindanao. He said in one of his communications to the Tribunal: I cannot think of any place that is safe.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
The "causes of action" pleaded appear to hinge on CAL's entry into the Packer agreement, an agreement about which it seems to be suggested the other respondents were aware. As against the fifth respondent it is alleged that they owed a duty of care to the Court, their fellow legal practitioners and the opposing parties and that they acted in breach of that duty in astonishingly expressed ways. I can only say that this claim ought never have been made in the way it was. It is offensive. A like duty of care is pleaded against the first to the fourth respondents. It is no more intelligible. A parallel claim is brought against all respondents under s 82 of the Trade Practices Act 1974 (Cth) for alleged contraventions of s 52 of that Act, this claim relying on the same conduct as in the negligence claim. The rationale for this claim is seemingly that if the conduct was negligent, it also was misleading or deceptive. How that conduct (which all related to circumstances allegedly affecting the conduct of the inquiry as damages application) could be said to be in "trade or commerce" is left as a mystery: cf Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 603-604; Little v Law Institute of Victoria (No 3) [1990] VR 257; WJ Green &amp; Co (1984) Pty Ltd v Wilden Pty Ltd, (unreported, Supreme Court of Western Australia, Parker J, 24 April 1997).