mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rose v Secretary, Department of Social Security (1990) 21 FCR 241
Outcome: cited
First, the Act is remedial legislation in that it gives benefits to persons and thereby remedies Parliament's perceptions of social injustice (Social Services Consolidation Bill (Cth), Second reading speech, 15 May 1947, Minister for Health and Social Services, the Hon Senator McKenna). Accordingly, it calls for no narrow or pedantic construction: Lockhart, Gummow and Einfeld JJ in Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244, Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 per Black CJ at 303 (for similar observations, I also note Director-General of Social Services v Hales (1983) 47 ALR 281 per Sheppard J at 321 and Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 at para 53). 31 Second, however, the settled rules of construction apply to the Act , and ordinary words used in the Act should receive their ordinary and natural meaning unless, in accordance with accepted rules of statutory construction, there is good reason to prefer some other meaning (Black CJ in SRA 43 FCR at 303, Rose 21 FCR at 244). 34 In relation to the concept of income being "earned, derived or received", it is clear that: &#8226; the use of the verbs "earned", "derived" and "received" in juxtaposition in the definition of "income" in the Act suggests that each was intended to have a different meaning: Sheppard J in Inguanti v Secretary, Department of Social Security (1988) 80 ALR 307 at 311 &#8226; income cannot be "earned, derived or received" unless it is also realised: Read 167 CLR per Mason CJ, Deane and Gaudron JJ at 67 &#8226; income can be realised - and hence received - even if temporarily it is not accessible: Rose 21 FCR at 245 &#8226; income can be "derived" within the meaning of s 8(1) even if it is not at that time received ( Inguanti 80 ALR at 311) &#8226; "earned" relates to personal earnings and profits ( Inguanti 80 ALR at 310).
Case: Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166
Outcome: cited
First, the Act is remedial legislation in that it gives benefits to persons and thereby remedies Parliament's perceptions of social injustice (Social Services Consolidation Bill (Cth), Second reading speech, 15 May 1947, Minister for Health and Social Services, the Hon Senator McKenna). Accordingly, it calls for no narrow or pedantic construction: Lockhart, Gummow and Einfeld JJ in Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244, Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 per Black CJ at 303 (for similar observations, I also note Director-General of Social Services v Hales (1983) 47 ALR 281 per Sheppard J at 321 and Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 at para 53).
Case: Secretary Department of Social Security v Davies [1997] 1024 FCA
Outcome: cited
Interestingly, the meaning of the phrase "own use or benefit" in s 8(1) of the Act has not previously been the subject of judicial decision in this Court, although it has been raised in argument in a number of cases without the need for the Court to make a decision (for example, in Secretary Department of Social Security v Davies [1997] 1024 FCA; Nelson v Secretary, Department of Social Security (Bowen CJ, Toohey and French JJ, 10 December 1986)).
Case: Secretary, Department of Social Security v Garvey (1989) 22 FCR 132
Outcome: considered
Fourth, it is important to note that the concept of "income" under the Act is not to be equated with "income" under income tax legislation: Haldane-Stevenson v Director-General of Social Services (1985) 9 FCR 73 per McGregor and Pincus JJ at 75 and Davies J at 80. It is an act which provides for income maintenance : Davies J in Haldane-Stevenson 9 FCR at 80; Morling, Hartigan and Lee JJ in Secretary, Department of Social Security v Garvey (1989) 22 FCR 132 at 136; cf comments of O'Loughlin J in Barry v Repatriation Commission (1993) 41 FCR 529 at 532. "Earned, derived or received" 44 Fifth, in interpreting the phrase "own use or benefit" it is clear that the obligation of the respondent in this case can be contrasted, for example, with payments made by a person as a result of arrangements otherwise within his or her control, such as outgoings on residential properties of the person which constitute an expense in generating rental income on those properties. As pointed out by the Full Court in Garvey 22 FCR at 136 in relation to such circumstances, "It was not the purpose of the Act to provide a further source of income for a person who had applied his or her income to maintain a business conducted at a loss or upon outgoings incurred in acquiring or maintaining assets. (See Read v Commonwealth [1988] HCA 26 ; (1988) 167 CLR 57 per Brennan J (at p 69)." 48 Finally, in my view a construction of the phrase which would characterise moneys required to be repaid to the employer as being for the employee's "own use and benefit" is at odds with the purpose of the Act to maintain a basic level of income for those who are unable to receive sufficient income to provide for themselves ( Garvey 22 FCR at 136, Secretary, Department of Social Security v McLaughlin (1998) 81 FCR 35 at 42). Such an arrangement means that the money paid by the employee to the employer is not actually usable by the employee as income, and cannot be taken into consideration in any realistic way in maintaining a basic level of income for the employee. Contrary to the submissions of the applicant, I do not find the reporting by the Hotel for superannuation purposes helpful in this context. Secretary, Department of Social Security v McLaughlin
Case: Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299
Outcome: cited
First, the Act is remedial legislation in that it gives benefits to persons and thereby remedies Parliament's perceptions of social injustice (Social Services Consolidation Bill (Cth), Second reading speech, 15 May 1947, Minister for Health and Social Services, the Hon Senator McKenna). Accordingly, it calls for no narrow or pedantic construction: Lockhart, Gummow and Einfeld JJ in Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244, Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 per Black CJ at 303 (for similar observations, I also note Director-General of Social Services v Hales (1983) 47 ALR 281 per Sheppard J at 321 and Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166 at para 53). 31 Second, however, the settled rules of construction apply to the Act , and ordinary words used in the Act should receive their ordinary and natural meaning unless, in accordance with accepted rules of statutory construction, there is good reason to prefer some other meaning (Black CJ in SRA 43 FCR at 303, Rose 21 FCR at 244).
Case: Secretary to the Department of Social Security v Cuneen [1997] 1033 FCA
Outcome: cited
Third, the concept of "income" under the Act is broad. As Brennan J observed in Read v The Commonwealth [1988] HCA 26 ; (1988) 167 CLR 57 at 69 in relation to the definition of "income" under the Social Security Act 1947 (Cth) (which in the context of the proceedings before me is not materially different to the definition of income in s 8 of the Act): "The definition is exhaustive: the term 'income' means what it is defined to mean; it does not mean what 'income' would be understood to mean if the definition were not in the Act. The definition is couched in the widest terms, presumably to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide." (I note that Brennan J was in dissent in his judgment in Read [1988] HCA 26 ; 167 CLR 57. However, like Foster J in Secretary to the Department of Social Security v Cuneen [1997] 1033 FCA, I do not read the other judgments in Read [1988] HCA 26 ; 167 CLR 57 as differing from Brennan J's construction of the meaning of "income").
Case: Watson v Secretary, Department of Family and Community Services [2003] FCA 415
Outcome: cited
The applicant submitted that the AAT had erred in ignoring the words "gross" and "from all sources", and had (in error) focused in isolation on the s 8(1) definition of "income". However no error was demonstrated by the AAT's approach. As I have held, the threshold issue in relation to identifying ordinary income is determining whether it is actually " income " within the meaning of the Act . Once income is identified, ordinary income can be calculated in accordance with s 1072 by reference to the gross income from all sources for the relevant period without reduction other than reduction under Div 1A of the Act . Expressed another way, the adjective "gross" applies to income once it is identified as income. An example of the application of this principle is in Watson v Secretary, Department of Family and Community Services [2003] FCA 415 where Finn J considered whether payments received by the applicant in that case under an income protection policy bore the character of ordinary income of the applicant's business so as to allow the reduction for losses and outgoings permitted by Div 1A. In that case his Honour, correctly in my opinion, accepted the submissions of the parties that the relevant moneys in that case were "income" within the meaning of the Act . Similarly in this case, the first question is whether the moneys received in this case, in particular the moneys repaid by the respondent to the applicant, actually constitute "income" within the meaning of s 8(1). 28 This question was clearly viewed by the SSAT and the AAT as the key issue in this case. Indeed in considering whether the respondent's ordinary income included these sums, the question may be recharacterised as whether the sums subsequently repaid by the respondent to the Hotel in respect of TAB till shortfalls constituted income amounts earned, derived or received by the respondent for her own use or benefit. In this respect, as I indicated earlier in this judgment, this question subsumes question of law 4 posed by the applicant, and I will consider both questions of law 3 and 4 together. "Income" under the Act : general principles 29 In considering the meaning of "income" as defined by the Act , a number of propositions are clear.
Case: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396
Outcome: cited
At [70] to [72] (pp 83 and 84), their Honours went on to explain the similarities and differences between the test expounded in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 and the test articulated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 as follows: 70 When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . 71 However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried" [1975] UKHL 1 ; [[1975] AC 396 at 407]. That was followed by a proposition which appears to reverse matters of onus [1975] UKHL 1 ; [[1975] AC 396 at 408]: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (Emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. 72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application [See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 and the article by Sofronoff, " Interlocutory Injunctions Having Final Effect ", Australian Law Journal, vol 61 (1987) 341.95]. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: followed
In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 , a majority of the High Court held that, where an interlocutory injunction is sought (inter alia) in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. Their Honours who comprised the majority made clear that the final relief sought need not be injunctive in nature. See [8] to [21] (pp 216 220) (per Gleeson CJ); [59] to [61] (pp 231 232) (per Gaudron J); and [86] to [92] (pp 239 242); [98] to [100] (pp 244 246); and [105] (p 248) (per Gummow and Hayne JJ). At [10] (p 216), Gleeson CJ also specifically cited with approval Spry, The Principles of Equitable Remedies , 5th edn, 1997 (pp 446 456).
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: followed
In Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] (pp 81 82), when referring to the well-known passage in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 at 622 623, Gummow and Hayne JJ said: By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) [1968] HCA 1 ; 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [1968] HCA 1 ; [(1968) 118 CLR 618 at 622]: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: followed
In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 25 The remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 require Sebel to show that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favours the granting of an injunction. 26 The first of these matters involves an assessment by the Court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted (see the discussion of this aspect in Spry, The Principles of Equitable Remedies , 7th edn, 2007 at pp 383 389; at pp 397 399; and at pp 457 462). 27 The second of these matters requires the Court to exercise a discretion.
Case: Hansen Beverage Co v Bickfords (Australia) Pty Ltd [2008] FCAFC 181
Outcome: followed
More recently, in Hansen Beverage Co v Bickfords (Australia) Pty Ltd [2008] FCAFC 181 , another Full Court of this Court said (at [34] to [37]): 34 In order to succeed in a passing off action, an applicant must establish, as one element of tort existing as at the date when the conduct commenced, that the applicant had the requisite reputation in the name or goods in the jurisdiction of the respondent and that there is a likelihood of deception among consumers or potential consumers resulting from the respondent's actions. An applicant must prove that there are, within the relevant jurisdiction, a substantial number of persons who were aware of the applicant's name or product and are possible consumers. It is necessary to show in a practical and business sense a sufficient reputation in the forum and this requires an evaluation of the size and distribution of the population of prospective consumers likely to be affected: see ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 342, 343, 346 (per Lockhart J), and 380 (per French J). 35 The tort of passing off is designed to protect the property and goodwill of a business. It is only available where an applicant can show goodwill or reputation in relation to the name or get-up of his or her goods or services because they have become distinctive of his goods or services in a particular market. An applicant will succeed where he or she can show that a potential customer is likely to be misled into believing that the respondents' goods are goods of the applicant or are somehow associated with the applicant: see Cadbury-Schweppes Pty Limited v Pub Squash Co Pty Limited (1980) 32 ALR 387 at 393. 36 In Conagra 33 FCR at 381, in relation to a claim under the TPA, French J referred to the expression "a not insignificant number" of persons who would be potential customers as being an appropriate criterion. His Honour went on to observe that if the similarity complained of is "commercially irrelevant", having regard to the number of people who know of that similarity, then the name or get-up is not misleading or deceptive. 37 In considering the question of reputation, although s 52 of the TPA makes no reference to "reputation", decisions under that provision have referred to the need to prove a "significant" or "substantial" proportion of persons within the relevant market who would be likely to be misled: see 10th Cantanae Pty Ltd v Shoshana Pty Limited (1987) 79 ALR 299 at 301; National Exchange Pty Ltd v Australian Securities &amp; Investments Commission (2004) 61 IPR 420 at 440; cf .au Domain Administration Ltd v Domain Names Australia Pty Limited [2004] FCA 424 ; (2004) 207 ALR 521 at 529-530.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: followed
As Gibbs CJ said in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 200: Speaking generally, the sale by one manufacturer of goods which closely resemble those of another manufacturer is not a breach of s 52 if the goods are properly labelled. There are hundreds of ordinary articles of consumption which, although made by different manufacturers and of different quality, closely resemble one another. In some cases this is because the design of a particular article has traditionally, or over a considerable period of time, been accepted as the most suitable for the purpose which the article serves. In some cases indeed no other design would be practicable. In other cases, although the article in question is the product of the invention of a person who is currently trading, the suitability of the design or appearance of the article is such that a market has become established which other manufacturers endeavour to satisfy, as they are entitled to do if no property exists in the design or appearance of the article. In all of these cases, the normal and reasonable way to distinguish one product from another is by marks, brands or labels. If an article is properly labelled so as to show the name of the manufacturer or the source of the article its close resemblance to another article will not mislead an ordinary reasonable member of the public. 178 Mason J (at 210 211) and Brennan J (at 224 226) expressed similar views. 179 The same reasoning would apply to passing off.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: followed
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 32 I will summarise the relevant facts under the following headings: &#8226; Sebel's Postura Chair &#8226; The Titan Chair &#8226; Sebel's Knowledge of the Titan Chair and Alleged Delay in Bringing its Application &#8226; The Sebel Postura Plus Chair &#8226; The Letter of Demand and Reed Furniture's Response &#8226; The Balance of Convenience 33 Sebel's Postura chair was developed by Sebel in the period 1992 to 1995. It was the product of extensive research carried out by Sebel in this period. The main design principles and special features sought to be reflected in Sebel's range of Postura chairs are illustrated by the following extract from Sebel's 1999 catalogue for the supply by it to NSW Government departments and other NSW authorities and institutions of education and training furniture under NSW Supply Contract 992/1250: