mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Scotch Whisky Association v De Witt [2007] FCA 1649 ; (2007) 74 IPR 382
Outcome: referred to
parties put forward different classes of consumer to whom the trade mark is addressed. Bavaria NV says that the relevant class is of consumers of premium beer. BBA identifies consumers of alcohol, both beer and wine. The consumer would be over 18 years of age and, I accept, such a consumer would be likely to be literate and astute to the characteristics of the products that he or she is purchasing, "brand savvy" and discerning in his or her purchasing habits (as in Scotch Whisky Association v De Witt [2007] FCA 1649 ; (2007) 74 IPR 382 at [60] per Sundberg J). The evidence, including that of BBA's witness Mr Crossland, and Bavaria NV's marketing material, supports a price conscious consumer who chooses fashionable goods and chooses to drink premium imported beer for a reasonable price. As Sundberg J in Scotch Whisky observed at [60], confusion is mitigated by a review of product labels. I accept that the ordinary consumer in Australia would be aware that Bavaria is a State in Germany, as a matter of common knowledge. Will the consumer of Bavaria NV beer be led by the trade mark to believe that the beer comes from, or otherwise has its origins in, Bavaria and that it of a particular quality or has certain characteristics as a result? This depends on the overall impression conveyed by the trade mark. The consumer of a premium beer will be likely to be more aware of the reputation of Bavaria as a source of beer but will also be likely to be more discerning and take more care in understanding the information on the label. The evidence adduced by BBA does not establish that brewers in Bavaria, or brewers in Bavaria of beer exported to Australia, generally use the term "Bavaria" or "Bayerisches Bier" on their labels. To the contrary, only one of the German beer bottles in evidence used the word "Bayern " on its label. Mr Crossland is a retired journalist who has developed an interest in and has written about beer. Mr Crossland wrote his first feature article on beer in September 1999 and then wrote occasional columns for The West Australian . The column then became a regular (weekly) column. Much of his experience, since the mid 1990s, comes from reading books, research and articles on beer as well as personal discussions with people in the industry including brewers, retailers, wholesalers and importers. He attends beer tastings and dinners. He has written regular updates and tasting notes on beers available at micro-breweries in Western Australia and on beers available at interstate micro-breweries, as well as updates and tasting notes on imported beers.
Case: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Outcome: referred to
Order 62 r 4(1) and (2), in my view, thus contemplate successively an order for costs, and for a means of quantifying those costs. That is a view which has been adopted by the Court, apparently without remark: see e.g. Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23. I can see no reason why O 62 r 4(2)(c) should not be given that effect.
Case: Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23
Outcome: referred to
Order 62 r 4(1) and (2), in my view, thus contemplate successively an order for costs, and for a means of quantifying those costs. That is a view which has been adopted by the Court, apparently without remark: see e.g. Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23. I can see no reason why O 62 r 4(2)(c) should not be given that effect.
Case: Brookfield v Davey Products Pty Ltd [1997] FCA 1462
Outcome: discussed
An alternative way of reaching the same outcome, where a gross sum order for costs may be made after an order for costs to be taxed, was adopted by Branson J in Brookfield v Davey Products Pty Ltd [1997] FCA 1462. In that matter, the costs order had expressly stated that the entitlement was to pay the 'costs to be taxed'. Her Honour considered that there was power under s 43 to vary the costs order so made by specifying a gross sum for costs. 12 I observe that, on 21 December 2005 when this issue was raised, Mr Dunstan did not contend that there was no power to do so.
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916
Outcome: cited
In Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 (the main costs judgment) delivered at the same time as this judgment, I referred at [22]-[24] to certain of the principles relevant to deciding whether to make a gross sum order for costs. I will not repeat them. 14 The course of the taxation of costs thus far in these matters indicates that the process of taxing costs to date in these matters has been prolonged and expensive. Mr Dunstan contends that that is the defendants' fault, and so should not be in the particular circumstances a reason to fix a gross sum for costs. 15 The bills of costs lodged on 20 February 2001 totalled $20,967 (31/97) and $21,137 (32/97) respectively. An accompanying memorandum indicated that, as the defendant in each matter was represented by the same solicitor and as each matter was conducted simultaneously, many item costs had been apportioned to each bill of costs. Mr Dunstan by letter of 25 March 2001 raised a number of objections to those bills of costs. The defendants indicated that, apart from the possibility that certain claimed costs relating to discovery ought not to have been included, they disagreed with Mr Dunstan's objections. They were nevertheless prepared to have the items objected to removed from the bills of costs. That led to the bills of costs being reduced by $3808 to $17,159 (31/97) and by $3811 to $17,326 (32/97). The disputed (and conceded) items were identified.
Case: Dunstan v Seymour [2002] FCA 1195
Outcome: cited
On 29 May 2002, directions were given for the taxing process. It was to commence on 20 September 2002. On 6 September 2002, Mr Dunstan applied by motion to set aside the costs orders in each matter. On 13 September 2002, those motions were each dismissed with costs: Dunstan v Seymour [2002] FCA 1195. In the meantime, the taxations were rescheduled to commence on 4 October 2002. 21 There have then been seven attendances between 4 October 2002 and 27 November 2003 totalling 15.5 hours for the taxing of costs. There has been no progress since that date. In that time, only five of 37 pages of the bill of costs in one matter (31/97) have been taxed. That covers 45 of 326 items. The taxation of the other bill of costs (32/97) has not yet started. Mr Dunstan's circumstances have restricted the sessions to no more than two hours, and it has been difficult to arrange his availability. Some schedule sessions have not taken place, though events beyond Mr Dunstan's control. 22 I do not regard that material as supporting Mr Dunstan's claim that responsibility for the slow progress of the taxation of costs rests with the defendants. It shows that the defendants, for the purposes of the taxation, were prepared to concede Mr Dunstan's first round of objections. They did so, on the evidence, to progress the taxation. They did not thereby acknowledge that those items should not have been claimed. An issue arose as to the extent to which Mr Dunstan should have access to material the subject of legal professional privilege for the purposes of the taxation. Another issue arose as to the extent to which time spent on research should be allowed on taxation. They are common issues which arise. They do not indicate the defendants consciously claimed work done which was not done, or claimed that time was spent which was not spent. The taxing officer could adjudicate on the individual items of work claimed. Indeed, the material referred to tends to indicate that Mr Dunstan, rather than the defendants, has approached the taxation of costs in an obstructive way by disputing each item of work claimed, even to the extent of saying that the work was not done.
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
is clear that the question whether there is a serious question to be tried imports the obligation of the applicant to establish a prima facie case for permanent relief as explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] . There, their Honours said the establishment of a prima facie case in this context meant it was sufficient for the plaintiff to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights the plaintiff asserts, and the practical consequences likely to flow from the order sought ( Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] , Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622).
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Outcome: followed
Fourth, although Mr Spry for Ms Jones urged that the contract of employment should be interpreted as implying a term requiring QTAC to accord natural justice to Ms Jones in connection with any determination of serious misconduct or misconduct by Ms Jones, such an implied term is difficult to reconcile with cl 15.6 which specifically provides that QTAC is not required to follow grievance or other procedures in view of the seniority of Ms Jones' position. The Court does not lightly imply terms into a contract which the parties have not thought fit to express. As observed by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 , in order for a term to be implied the following conditions must be satisfied: It must be reasonable and equitable; It must necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; It must be so obvious "it goes without saying"; It must be capable of clear expression; and It must not contradict any express terms of the contract. In light of the detailed terms of cl 15, which provides for different grounds of termination and associated periods of notice, and a specific provision in cl 15.6 excluding review procedures in respect of Ms Jones' employment, it is difficult to see how the implication of term importing the rules of natural justice into the terms and conditions of employment can be justified on any of the conditions described in BP Refinery (1977) 180 CLR 266. Certainly there is clear authority to the contrary the House of Lords held in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 that, absent statutory intervention, there is no rule at common law that the requirements of natural justice are incorporated into the employment relationship (per Lord Reid at 1581F-G, Lord Morris of Borth-y-Gest at 1586F and 1588D, Lord Guest at 1593G-H, Lord Wilberforce at 1595E).
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
is clear from the decision of the High Court in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 that the same considerations apply in respect of the implication of terms into contracts of employment.
Case: Kimpton v Minister for Education (1996) 65 IR 317
Outcome: cited
Fourth, I am persuaded that the commencement of an investigation into the allegations against Ms Jones and the commissioning of the Carol Watson report arguably constituted "adverse action" for the purposes of the FW Act. In particular, I note: Observations of North J in Kimpton v Minister for Education (1996) 65 IR 317 at 319 where his Honour said: I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. This is not to say that there is not force in the arguments put by Dr Jessup. Those arguments should, however, be resolved at the trial of the proceeding when the matter can be determined after comprehensive argument and in the light of all the evidence available at the trial. Observations of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 at [89] where his Honour said in the course of delivering judgment in respect of an application for an interlocutory injunction: I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven... The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven. In highlighting these comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 , Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon [2008] FCA 467 ; (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage.
Case: Malloch v Aberdeen Corporation [1971] 1 WLR 1578
Outcome: cited
light of the detailed terms of cl 15, which provides for different grounds of termination and associated periods of notice, and a specific provision in cl 15.6 excluding review procedures in respect of Ms Jones' employment, it is difficult to see how the implication of term importing the rules of natural justice into the terms and conditions of employment can be justified on any of the conditions described in BP Refinery (1977) 180 CLR 266. Certainly there is clear authority to the contrary the House of Lords held in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 that, absent statutory intervention, there is no rule at common law that the requirements of natural justice are incorporated into the employment relationship (per Lord Reid at 1581F-G, Lord Morris of Borth-y-Gest at 1586F and 1588D, Lord Guest at 1593G-H, Lord Wilberforce at 1595E).
Case: Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622
Outcome: cited
the basis that Ms Jones would suffer an injury from this course of action, I consider that damages would not provide an adequate remedy. Discipline of a chief executive officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view it is likely that such a course of conduct would have a detrimental effect on Ms Jones' reputation and impose a stigma which could adversely affect her future career prospects (cf comments of Young J in Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622 at [29] ). Issue 3 Does the balance of convenience favour the granting of an interlocutory injunction? In relation to this issue, Ms Jones submitted in summary that: In response QTAC submitted that the balance of convenience is strongly in favour of denying the interlocutory relief sought because, in summary:
Case: United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466
Outcome: cited
Fourth, I am persuaded that the commencement of an investigation into the allegations against Ms Jones and the commissioning of the Carol Watson report arguably constituted "adverse action" for the purposes of the FW Act. In particular, I note: Observations of North J in Kimpton v Minister for Education (1996) 65 IR 317 at 319 where his Honour said: I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. This is not to say that there is not force in the arguments put by Dr Jessup. Those arguments should, however, be resolved at the trial of the proceeding when the matter can be determined after comprehensive argument and in the light of all the evidence available at the trial. Observations of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 at [89] where his Honour said in the course of delivering judgment in respect of an application for an interlocutory injunction: I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven... The laying of the charges exposes an employee of the board to a potential disadvantage in his or her employment if the charges are ultimately proven. In highlighting these comments of Ryan J in Nixon [2008] FCA 467 ; (2008) 168 FCR 340 , Mr Spry submitted that his Honour contemplated adverse action taken by an employer in circumstances where a disciplinary charge was brought other than in good faith, and contended that such was the case in relation to the commencement of the investigation against Ms Jones. In my view, placing to one side for the moment whether the commencement of the investigation constituted adverse action against Ms Jones, there is little evidence at this stage to support any claim by Ms Jones that the Carol Watson report was commissioned by QTAC other than in good faith. Indeed, as Mr Murdoch SC submitted, under the Workplace Health and Safety Act 1995 (Qld) QTAC is obliged to ensure the safety of its employees at work, which includes protection from workplace harassment. However it is also the case that the possible conflict of authority between Kimpton (1996) 65 IR 317 and United Firefighters (2003) 198 ALR 466 on the one hand, and Nixon [2008] FCA 467 ; (2008) 168 FCR 340 on the other, suggests another issue which warrants determination at a final hearing rather than at an interlocutory stage.
Case: Australian Fisheries Management Authority v Graham [2003] FCA 231 ; (2003) 127 FCR 436
Outcome: referred to
10 January 2001, a Mr Horst Fischer was issued with a fishing permit which had a quota allocation calculated in accordance with his catch history. He challenged the Authority's decision in the Tribunal on the ground that the policy applied by the Authority in determining the quota allocation was unfair because it ignored the fact that, in practice, permits were transferred and had a capital value. Mr Fischer was successful before the Tribunal and an appeal to this Court by the Authority was dismissed ( Re Fischer and Australian Fisheries Management Authority [2002] AATA 857 ; (2002) 71 ALD 665 ; Australian Fisheries Management Authority v Graham [2003] FCA 231 ; (2003) 127 FCR 436). I will refer to those proceedings as the Fischer No 1 proceedings.
Case: Australian Securities and Investments Commission v Donald [2003] FCAFC 318 ; (2003) 136 FCR 7
Outcome: cited
first respondent's submission that the Panel may, for the purposes of reviewing the decision, exercise a power or discretion conferred on the Authority even where the Authority did not exercise the power or discretion is correct: Australian Securities and Investments Commission v Donald [2003] FCAFC 318 ; (2003) 136 FCR 7 at 15 [29] - [30] per Kenny J. That is so, it seems, even where the original decision-maker, in reaching the decision it did, was not bound to consider the exercise of the particular power or discretion: Secretary, Department of Social Security v Hodgson [1992] FCA 338 ; (1992) 37 FCR 32. However, these principles do not assist the first respondent's argument because, for the reasons I have given, the Authority did not have the power or discretion to vary or revoke a condition attached to the first respondent's fishing permit in the course of making the decision it did.
Case: Fischer and Australian Fisheries Management Authority, Re; [2002] AATA 857 ; (2002) 71 ALD 665
Outcome: referred to
10 January 2001, a Mr Horst Fischer was issued with a fishing permit which had a quota allocation calculated in accordance with his catch history. He challenged the Authority's decision in the Tribunal on the ground that the policy applied by the Authority in determining the quota allocation was unfair because it ignored the fact that, in practice, permits were transferred and had a capital value. Mr Fischer was successful before the Tribunal and an appeal to this Court by the Authority was dismissed ( Re Fischer and Australian Fisheries Management Authority [2002] AATA 857 ; (2002) 71 ALD 665 ; Australian Fisheries Management Authority v Graham [2003] FCA 231 ; (2003) 127 FCR 436). I will refer to those proceedings as the Fischer No 1 proceedings.
Case: Lamason v Australian Fisheries Management Authority [2009] FCA 245
Outcome: cited
Authority may make plans of management under the FM Act. They are legislative instruments under the FM Act ( Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [149] - [150] per Spender J). The process by which plans of management are made and the information or material they may contain are dealt with in ss 17-20 inclusive of the FM Act. A plan of management is relevant in this case and it is the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. The plan commenced on 1 October 2003 and it has been amended twice. I will refer to it as the Management Plan. The FM Act deals with the granting of statutory fishing rights. There are a number of steps involved in the process. In a case where a grant of a statutory fishing right is not to be conferred by auction or tender, the FM Act provides that the relevant management plan will set out the procedures for determining the person to whom a grant is to be made available (s 29(3) of the FM Act). There are a range of decisions the Authority is required to make under the FM Act. A number of them may be reviewed by the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 (Cth). Section 165 of the FM Act grants rights of review from decisions of the Authority. The decisions which may be reviewed include a decision by the Authority under s 32 of the FM Act, that is to say, a decision to grant a fishing permit or a decision to impose a particular condition on a fishing permit.