mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In the matter of The Australian Gas Light Company (No 2) (2006) 60 ACSR 406
Outcome: referred to
The shares of Alinta's predecessor were first listed for quotation on Australian Securities Exchange Limited (ASX) in 2000. Following approval by the Court on 9 October 2006 ( In the matter of The Australian Gas Light Company (No 2) (2006) 60 ACSR 406) of a scheme of arrangement between Alinta's predecessor and its members, the shares in Alinta were also listed for quotation by the ASX. The scheme of arrangement of October was interdependent with another scheme of arrangement involving the Australian Gaslight Company (AGL). The assets of AGL included interests in Australian Pipeline Trust (APT). As a result of the October schemes of arrangement, Alinta has interests in energy producing and energy infrastructure enterprises including AGL's and other interests in APT. 3 In January 2007, Alinta announced that it had received an approach concerning a potential management buy-out proposal by a group of senior executives. Alinta's board then initiated a competitive process by which potentially interested parties were invited to put forward expressions of interest to acquire Alinta or interests of Alinta. Proposals were received on 23 March 2007 from two consortia, described as Macquarie Bank Consortium, and a consortium formed by a joint venture of Babcock &amp; Brown International Pty Limited (Babcock &amp; Brown) and Singapore Power International Pty Limited (Singapore Power). The latter consortium (The Babcock-Singapore Consortium) formed ES&amp;L Pty Limited (the Bidder), as the vehicle for the furtherance of their proposal. Following negotiations with both the Macquarie Bank Consortium and the Babcock-Singapore Consortium, a Scheme Implementation Agreement was entered into between Alinta, the Bidder, Babcock &amp; Brown and Singapore Power, under which the Bidder was to acquire the entire issued share capital of Alinta (the Original Agreement). 4 A public announcement was made by Alinta on 30 March 2007 concerning the Original Agreement. On 4 May 2007, Macquarie Bank Consortium submitted a revised proposal to Alinta. In response, the Babcock-Singapore Consortium submitted a revised proposal. The latter revised proposal also involved three managed funds connected with Babcock &amp; Brown. The three managed funds (the Funds) are: &#8226; Babcock &amp; Brown Infrastructure Group, comprising Babcock &amp; Brown Infrastructure Limited and Babcock &amp; Brown Infrastructure Trust. &#8226; Babcock &amp; Brown Power comprising Babcock &amp; Brown Power Limited and Babcock &amp; Brown Power Trust. &#8226; Babcock &amp; Brown Wind Partners, comprising Babcock &amp; Brown Wind Partners Limited, Babcock &amp; Brown Wind Partners Bermuda Limited and Babcock &amp; Brown Wind Partners Trust.
Case: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397
Outcome: applied
I find the evidence of the applicant's boyfriend to be of no assistance to me in determining whether the applicant was fit enough to attend Court on the morning of 12 October 2007, given the lack of time he appears to have spent with the applicant around the time when the hearing was due to take place and the fact that his evidence really only repeats what the applicant said to him rather than expresses his own observations on the applicant's alleged condition at the times when he did see her. Consequently, I find that the applicant has not demonstrated a satisfactory explanation for her failure to attend the hearing which was listed on 12 October 2007. 15 Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant "had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error". 16 Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
As to the question of an order extending time, the Full Court observed in Nguyen v Minister for Immigration &amp; Citizenship [2007] FCAFC 38 at [23] : "Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days" . In that case, the Full Court noted that the effect of the Rules was that, had the judgment below been final, not interlocutory, the granting of an extension of time within which to appeal would have required "special reasons" to be shown. In that regard, the Full Court drew attention to the observations which had been made in relation to that requirement by an earlier Full Court in Jess v Scott (1986) 12 FCR 187.
Case: Johnston v Comcare [2002] FCAFC 251 ; (2002) 124 FCR 160
Outcome: considered
The present case nicely illustrates the point. The refusal by the Federal Magistrates Court on 12 November 2007 to set aside the order of dismissal made on 12 October 2007 and to reopen the proceeding for the judicial review of the Tribunal's decision did not have the legal effect of finally determining as between the Applicant and the Minister the merits of that proceeding. However, the practical effect of the refusal to reopen was to leave in place the order of dismissal of the challenge to the Tribunal's decision. That, in turn, had the practical effect of leaving standing the decision of the Tribunal affirming the refusal to grant the Applicant a protection visa. An appreciation of the practical effect that some, strictly interlocutory judgments may nonetheless have led Branson J in Johnston v Comcare [2002] FCAFC 251 ; (2002) 124 FCR 160 at [8] to observe that leave to appeal is more readily granted where a decision, if allowed to stand, will have "the practical effect" of determining a claim of an applicant to be entitled to an order, rather than in a case concerning practice and procedure only. I have approached the question of whether to grant leave in this case with this sentiment in mind.
Case: NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659
Outcome: cited
I find the evidence of the applicant's boyfriend to be of no assistance to me in determining whether the applicant was fit enough to attend Court on the morning of 12 October 2007, given the lack of time he appears to have spent with the applicant around the time when the hearing was due to take place and the fact that his evidence really only repeats what the applicant said to him rather than expresses his own observations on the applicant's alleged condition at the times when he did see her. Consequently, I find that the applicant has not demonstrated a satisfactory explanation for her failure to attend the hearing which was listed on 12 October 2007. 15 Applications for leave to appeal may be heard either by a Full Court or by a single judge: s 25(2)(a) Federal Court of Australia Act 1976 (Cth). The principles relevant to a grant of leave are not in doubt, the root authority being D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397. Those principles are, firstly, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being considered by the Full Court and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. Later in time and in the context of an application for leave to appeal from a decision of the Federal Magistrates Court dismissing an application for the judicial review of a decision of the Tribunal, Hely J remarked in NACA v Minister for Immigration and Multicultural Affairs [2003] FCA 659 at [12] that an applicant "had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error". 16 Whether a judgment is interlocutory, rather than final, and hence requires a grant of leave to appeal by virtue of s 24(1A) of the Federal Court of Australia Act is sometimes a question of considerable nicety. It is the legal effect of a judgment, rather than its practical effect, that is determinative of the question whether a judgment is final or interlocutory.
Case: Nguyen v Minister for Immigration &amp; Citizenship [2007] FCAFC 38
Outcome: cited
As to the question of an order extending time, the Full Court observed in Nguyen v Minister for Immigration &amp; Citizenship [2007] FCAFC 38 at [23] : "Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days" . In that case, the Full Court noted that the effect of the Rules was that, had the judgment below been final, not interlocutory, the granting of an extension of time within which to appeal would have required "special reasons" to be shown. In that regard, the Full Court drew attention to the observations which had been made in relation to that requirement by an earlier Full Court in Jess v Scott (1986) 12 FCR 187. 19 The Full Court in Nguyen seems to have been of the view that it would be incongruous not to adopt a similar approach to the granting of an extension of time within which to apply for leave to appeal to that required in relation to the granting of an extension of time within which to appeal. That said, the Full Court (at [27]) rejected the adoption of any narrow, pedantic approach to the granting of an extension of time. In the circumstances of that case, the Full Court regarded it as preferable to deal with the application by reference to the prospects of any appeal rather than by considering whether such delay as had occurred justified the refusing of an extension of time.
Case: SZKCE v Minister for Immigration and Citizenship [2008] FCA 302
Outcome: cited
On 7 December 2007, the Applicant filed in this Court an application entitled "Extension of Time to file and serve a Notice of Appeal". It is apparent from that document that the Applicant wishes to challenge the decision on 12 November 2007 by the Federal Magistrates Court to decline to set aside the earlier order of that Court dismissing her judicial review application. In an earlier interlocutory judgment in this matter, which I delivered on 6 March 2008 ( SZKCE v Minister for Immigration and Citizenship [2008] FCA 302 at [3] ), I observed: The Minister, in his written submissions, submits that the correct characterisation for the application of 7 December is that of an application for leave to appeal against a pre-hearing judgment. It seems to me that that is the correct way to regard the application of 7 December 2007. The Minister, very properly, does not seek to make any adverse issue of the form of the application, but, instead, has proceeded on the basis that it is an application for leave to appeal. I proceed therefore on the basis that the application is, in substance, an application for leave to appeal from the decision of the Federal Magistrates Court given on 12 November 2007. Strictly speaking, the application also carries with it an application for the dispensing of the time within which an application for leave to appeal ought ordinarily to be filed: O 52 r 5(2)(a) Federal Court Rules . That is because the application was filed more than 21 days after the decision of the Federal Magistrates Court was pronounced. 5 After 6 March 2008, a series of adjournments of the hearing of the application followed, for reasons which in the very particular circumstances of this case seemed to me to be warranted, for the purpose of enabling the Applicant to have the benefit of legal advice from the McArthur Legal Centre, a community legal centre based at Campbelltown in New South Wales. I gave reasons at the time for the granting of these adjournments. It is not necessary to repeat them. In the result, the application came on for hearing before me in the immigration appeals list in Sydney on 14 November 2008. 6 When the application was called on for hearing in November the Applicant first made a statement about her experiences with officials of the Department in relation to the extension of her existing visa in the interval between when the application was last before the Court in August this year and the present hearing. As was correctly submitted on behalf of the Minister, whatever may have occurred in this regard, and there was no suggestion that the solicitors firm presently acting for the Minister was involved, that was not relevant to the question of whether leave to appeal ought to be granted. It will though be necessary to make some observations on the subject later in these reasons.
Case: 10th Cantanae Pty Ltd v Shoshana Pty Ltd (Sue Smith Case) (1987) 79 ALR 299
Outcome: followed
In 10th Cantanae Pty Ltd v Shoshana Pty Ltd (Sue Smith Case) (1987) 79 ALR 299 , the Full Court adopted the approach that for an applicant to establish a case for contravention of s 52 of the TPA, it must prove a 'significant' or 'substantial' proportion of persons within the relevant market would likely be misled or deceived. This was adopted in National Exchange Pty Ltd v Australian Securities &amp; Investments Commission (2004) 61 IPR 420 (per Jacobson and Bennett JJ at [70]-[71]). Whilst there may be some view to the contrary (see .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 , [25]-[26] per Finkelstein J), I will proceed to approach the question of the operation of the TPA by requiring it to be established that a significant or substantial proportion of persons who would be potential customers within Australia would be likely to be misled. Whilst some may consider this approach puts a greater burden than that considered by Hill J to be required, I am inclined to consider that the difference in approach is a matter of expression and not one of quantitative substance.
Case: ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320
Outcome: applied
Bickfords contended that the documents in the three exhibits do not fall under the business records exception on the basis that they are not business records, but rather products of the business , in the sense considered by Sperling J in Roach v Page (No 15) [2003] NSWSC 939. Similarly, Bickfords submitted that the records were not internal ones and as such, as set out in ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 , they could not be regarded as business records under s 69. Additionally, Bickfords argued, the representations were prepared in contemplation of litigation and did not therefore fall within the business records exception. 133 The records referred to in s 69(1) of the Evidence Act are the documents a business generates in the course of, or for the purpose of the business, not documents which it may have or keep as the product of that business. The concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself: see Sperling J in Roach v Page [2003] NSWSC 939 ; ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [180] - [182] per Austin J.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 239 ALR 662
Outcome: followed
It is important that opinion evidence sets out the process of reasoning so that the opinion satisfies the requirements of s 79. As the Full Court said in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 239 ALR 662 at [108] [109]: Further, unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated. It is for the Court to judge the reliability of, and the weight to be given to, particular evidence. Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. If not, the opinion evidence would normally be rejected under s 135. 141 Apart from the information contained in the exhibits to the affidavit, Mr Alford's opinion evidence was significant in that it purported to give evidence as to the processing, checking for quality and validating the use of the data in the final television ratings database. There was no evidence as to who did this, or how various 'standard statistical methods' were adopted by him or the nature of the 'publicity and reliable demographic information' referred to by him. Ms Inglis-Clark did not provide this information, even if this could be relied upon to support Mr Alford's material. Mr Alford's evidence is more than a view expressed about business or professional practice, and cannot be equated to that, of say, a valuer who relies upon his own experience and observation in the giving of evidence. 142 In the case of Mr Alford's evidence, it being opinion evidence, the requirements of s 79 of the Evidence Act needed to be complied with and, in my view, they have not been.
Case: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387
Outcome: followed
I am of the view that the correct date at which Hansen's reputation should be assessed is the point at which the relevant Bickfords' product became available to consumers: in April/May 2006. Before this date, there was no possibility that a consumer could be misled or deceived under s 52 of the TPA. In relation to the passing off claim, Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 established that the relevant date is the date of commencement by the respondent of the conduct complained of again, April/May 2006. No importance in this proceeding attaches to whether the month of April or May 2006 is specifically nominated as the relevant date. 53 Even if the correct date is the date when the impugned conduct was threatened, the relevant date would still be April/May 2006 in the circumstances of this case. 54 The meeting between Mr Hukowskyj of Bickfords and Jessica Brown of Coles on 29 November 2005 involved no threat of passing off or contravention of the TPA because Bickfords was still considering its options, and if Bickfords were to proceed with the MONSTER branding its intention was then 'to secure licensed rights to the MONSTER brand in Australasia'. That is to say, rather than threatening to pass off its product as Hansen's in November 2005, Bickfords had in mind to sell its product under licence from Hansen. 55 As to the proposed 12 January 2006 date, Bickfords relies upon an advertisement in the Australian Trade Marks Journal of acceptance of Bickfords' MONSTER ENERGY trade mark application and Mr Hukowskyj's presentation to Ms Brown of Coles. 56 In Bickfords' submissions in relation to the trade mark application it was stated: It is to be noted that it is a requirement of a valid trade mark application for an unused mark that it be based on a definite and present intention to use the mark as a trade mark in the immediate future.
Case: Colorado Group Ltd v Strandbags Group Pty Ltd [2006] FCA 160 ; (2006) 67 IPR 628
Outcome: distinguished
There was some dispute between the parties as to the relevant date at which Hansen's reputation should be assessed. Bickfords contented that the relevant date is when the impugned conduct commenced, or whenever the passing off was first threatened, whichever is earlier. Bickfords relied on the decision of Finkelstein J in Colorado Group Ltd v Strandbags Group Pty Ltd [2006] FCA 160 ; (2006) 67 IPR 628 , and argued that the impugned conduct commenced no later than 29 November 2005, being the date when Mr Hukowskyj of Bickfords met with Jessica Brown of Coles and first raised the concept of supplying a 440 mL energy drink product to Coles. At that time, Bickfords had lodged applications for registration of the MONSTER and MONSTER ENERGY names. 50 Alternatively, Bickfords argued that the relevant date should be at least 12 January 2006, by which time Bickfords had presented mock up cans to Coles and the Trade Marks Office had publicly advertised the acceptance of Bickfords' MONSTER ENERGY trade mark application. 51 Hansen, on the other hand, looks to the date on which the Bickfords products were available to consumers, namely late April or early May 2006, arguing that consumers could not be misled or deceived until the Bickfords product was available for purchase. Hansen also submitted that, in any event, Bickfords may not now retract from its defence, in which the earliest date pleaded was April 2006. Hansen dismissed Bickfords' argument concerning the publication of the acceptance of Bickfords' MONSTER ENERGY trade mark application on the basis that there was no evidence that Bickfords was proposing to use those marks other than in accordance with its plan to obtain a licence from Hansen.
Case: Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409
Outcome: cited
Other authorities were relied upon by Hansen, but I do not consider they take the matter any further or specifically address the issue of the tender of the documents in the three exhibits, being extracts obtained by Hansen effectively of statistical information produced and created by and in the possession of OzTAM: see for example Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 ; R W Miller &amp; Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152; Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249; and Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 .