mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 , 
Outcome: cited
In any event, there is no support for the proposition that even if Krueger failed in its infringement claim, then by definition Vawdrey's cross-claim would have succeeded. Even assuming that the threats contained in the letters were in fact unjustified, Vawdrey would not be entitled as of right to a declaration to that effect: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 at 107-108; see also Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 at [39] - [42] ; Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154.
Case: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 , 
Outcome: cited
For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders .
Case: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 , 
Outcome: cited
In any event, there is no support for the proposition that even if Krueger failed in its infringement claim, then by definition Vawdrey's cross-claim would have succeeded. Even assuming that the threats contained in the letters were in fact unjustified, Vawdrey would not be entitled as of right to a declaration to that effect: JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68 at 107-108; see also Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCA 447 at [39] - [42] ; Avel Pty Ltd v Intercontinental Grain Exports Pty Ltd (1996) 65 FCR 154.
Case: Jones v Dunkel (1959) 101 CLR 298 , 
Outcome: applied
These principles were restated by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-305, again by comparing and contrasting hypotheses or conjecture on the one hand, and the drawing of inference on the other. He said: [I]n any case, we are not concerned with a choice between rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind . It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture." These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd . [(Unreported, delivered 27th April 1951)], which is referred to in Holloway v. McFeeters [1956] HCA 25 ; [(1956) 94 CLR 470] , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." [1956] HCA 25 ; [(1956) 94 CLR 470 , at 480-481] But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied . (Emphasis added)
Case: Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 , 
Outcome: cited
The Krueger Drawings were produced by Stephen Hunt from the Krueger Sketch and further oral explanations of the load restraint issue from Adel Gerges (see above at [33]-[35] and [37]). The Krueger Drawings are similar. However, that does not mean they are less likely to be original; the redrawing of a technical drawing may still involve considerable skill, time and effort on the part of the draftsperson: Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 , 378-379 per Gummow J; New England Country Homes Pty Ltd v Moore (199) 82 FCR 500 , 502-503 per Burchett J.
Case: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, 
Outcome: cited
Just as copyright protects only a form of expression and not an idea itself, it is the originality of the expression , and not the originality of the ideas encompassed in the work, that is assessed: see eg, Donoghue v Allied Newspapers Ltd [1938] Ch 106 (Ch D) per Farwell D at 109-112 in relation to the same requirement of originality for the Copyright Act 1911 (UK). Originality requires no notion of novelty or invention. If the form of expression represents independent application of knowledge, judgment, skill or labour, that will be sufficient: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465. 129 For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders .
Case: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 , 
Outcome: cited
The concession of Mr Cameron does not end the inquiry, however, because not everything that is confidential in business is necessarily deemed confidential in law. What is important for information to attract a legal obligation of confidence is that "the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff": Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414 at 438. In Moorgate , the High Court found that information relating to a new cigarette brand was not confidential in part because it comprised merely standard marketing materials that would be shown to any prospective licensees, not just the defendant. Here, on the other hand, it is clear that Krueger created the information and communicated it to Camerons so that Krueger, and only Krueger, would win the business with Camerons. It is thus objectively reasonable in the circumstances of this case that the preservation of the information's confidentiality and secrecy (specifically, its non-disclosure to competitors such as Vawdrey) was of substantial concern to Krueger. Accordingly, I conclude that the information in [3] attracted an obligation of confidentiality under the 'reasonable man' test propounded by Megarry J in Coco at 48.
Case: New England Country Homes Pty Ltd v Moore (199) 82 FCR 500 , 
Outcome: cited
The Krueger Drawings were produced by Stephen Hunt from the Krueger Sketch and further oral explanations of the load restraint issue from Adel Gerges (see above at [33]-[35] and [37]). The Krueger Drawings are similar. However, that does not mean they are less likely to be original; the redrawing of a technical drawing may still involve considerable skill, time and effort on the part of the draftsperson: Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 , 378-379 per Gummow J; New England Country Homes Pty Ltd v Moore (199) 82 FCR 500 , 502-503 per Burchett J.
Case: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 , 
Outcome: cited
Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day &amp; Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material.
Case: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 
Outcome: cited
In assessing whether copyright subsists in a work, it must be clear exactly what copyright is claimed over, as copyright protects only the form in which ideas and information are expressed: Baker v Selden [1879] USSC 9 ; (1879) 101 US 99. Copyright does not cover ideas or concepts: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 , 531 and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 , 547-574. This is the basis upon which copyright is built, and distinguishes copyright protection from patent registration under the Patents Act 1990 (Cth).
Case: SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 , 
Outcome: cited
For infringement of copyright, the infringing act must be done in relation to a substantial part of the work (ss 14(1)(a) and (b) of the Act), and the infringing item must be objectively similar to the original work: Francis Day &amp; Hunter Ltd v Bron [1963] Ch 587 at 614 per Willmer LJ; SW Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ. Whether assessed by visual comparison or otherwise, substantial reproduction "depends much more on the quality than on the quantity" of what is alleged to have been copied: Ladbroke at 469 per Reid LJ; LED Builders . 131 Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day &amp; Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material.
Case: Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 
Outcome: cited
Krueger's claim for infringement of copyright in the Krueger Drawings, which do contain a distinct expression of the concept contained in the Krueger Sketch, does not fail. For infringement of copyright, there must be a degree of objective similarity and there must also be some causal connection between the work in which the copyright subsists and the allegedly infringing work: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 at [124] ; Francis, Day &amp; Hunter at 614; SW Hart at 472 per Gibbs CJ. Although inferences from facts can be drawn to substantiate a causal connection (see eg Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 , 387; LED Builders at 225), there must still be established facts from which to infer that the allegedly infringing party had access to the copyright material.
Case: Decor Corporation v Dart Industries Inc (1991) 33 FCR 397
Outcome: referred to
23 March 2006 the applicant filed a notice of appeal from the decision in this Court. Rule 44.12(2) of the Federal Magistrates Court Rules 2001 makes it clear that an order for dismissal under paragraph (1)(a) is an interlocutory order. The Minister for Immigration and Multicultural Affairs filed a notice of objection to competency of the appeal and submits that the appeal is not competent in the absence of a grant of leave to appeal. In my opinion, that submission is correct. The order made by the Magistrate is interlocutory, and under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), leave to appeal is required. The Minister does not object to me treating the purported notice of appeal as an application for leave to appeal, and I think that that is the appropriate course. The test for granting leave to appeal is well known and I will not repeat it: Decor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 399-400. The applicant is a citizen of the People's Republic of China, and she arrived in Australia on 15 March 2005. On 26 April 2005, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act. On 5 August 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 6 September 2005, the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant was born on 6 March 1957 and she claims that she is one of the leaders of Falon Gong in Shanghai, China. She claims that the Chinese authorities regard Falon Gong as an illegal organisation. She claims that she helped to organise a number of activities related to Falon Gong. She claims that she was warned about her involvement in Falon Gong by the local police and local government. She claims that in April 2001, she was put into detention for one month. She claims that in October 2002, she was ordered to attend a 're-education' centre for two months. She claims that in May 2003, she was imprisoned for one week because an unidentified person told the police that she practised Falon Gong every day. On 28 September 2005, the Tribunal wrote to the applicant and advised her that it had considered the material before it in relation to the application, but was unable to make a decision in her favour on that information alone. The applicant was invited to attend a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. She was told that if she did not attend the hearing and if the Tribunal did not postpone the hearing, then the Tribunal could make a decision on her case without further notice. She was advised that the proposed hearing would take place on 28 October 2005. The applicant did not attend the proposed hearing of the Tribunal. On 31 October 2005, she was advised that the Tribunal had made a decision, and that it would hand down its decision on 22 November 2005. The Tribunal decided to affirm the decision of the delegate of the Minister.
Case: SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457
Outcome: referred to
to the second ground, the Magistrate rejected the challenge of the Tribunal's approach for a number of reasons. First, he concluded that all the Tribunal member was saying was that that was an issue that he would like to have explored with the applicant and that that was not an error. Secondly, the comment was based on information provided by the applicant, and, accordingly, did not need to be disclosed by reason of the provisions of s 424A(3)(b) of the Act. Thirdly, the Magistrate said that the information did not need to be disclosed because it was the insufficiency of the information that was determinative and not any particular information contained in the visa application. The Magistrate referred to the decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457. I agree with each of the reasons identified by the Magistrate. His conclusions are supported by authority, including VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 476-477, at [24] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.
Case: SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Outcome: referred to
to the second ground, the Magistrate rejected the challenge of the Tribunal's approach for a number of reasons. First, he concluded that all the Tribunal member was saying was that that was an issue that he would like to have explored with the applicant and that that was not an error. Secondly, the comment was based on information provided by the applicant, and, accordingly, did not need to be disclosed by reason of the provisions of s 424A(3)(b) of the Act. Thirdly, the Magistrate said that the information did not need to be disclosed because it was the insufficiency of the information that was determinative and not any particular information contained in the visa application. The Magistrate referred to the decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457. I agree with each of the reasons identified by the Magistrate. His conclusions are supported by authority, including VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 476-477, at [24] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
to the second ground, the Magistrate rejected the challenge of the Tribunal's approach for a number of reasons. First, he concluded that all the Tribunal member was saying was that that was an issue that he would like to have explored with the applicant and that that was not an error. Secondly, the comment was based on information provided by the applicant, and, accordingly, did not need to be disclosed by reason of the provisions of s 424A(3)(b) of the Act. Thirdly, the Magistrate said that the information did not need to be disclosed because it was the insufficiency of the information that was determinative and not any particular information contained in the visa application. The Magistrate referred to the decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457. I agree with each of the reasons identified by the Magistrate. His conclusions are supported by authority, including VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 per Finn and Stone JJ at 476-477, at [24] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.
Case: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21 ; (1988) 164 CLR 502
Outcome: referred to
the very right or cause of action claimed or put in suit in the claim against the first respondent may have passed into judgment, so that it is merged and no longer has an independent existence, the right or cause of action claimed or put in suit in the applicant's claim against the fourth respondent is a different right or cause of action. Its independent existence has not been destroyed (cf Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21 ; (1988) 164 CLR 502 at 510-511). The applicant's right or cause of action against the fourth respondent has not passed into judgment. It retains its independent existence.
Case: The Deputy Commissioner of Taxation of the Commonwealth of Australia v Moorebank Proprietary Limited [1988] HCA 29 ; (1988) 165 CLR 55
Outcome: cited
there will inevitably be cases in which it would be oppressive for the Commissioner to seek to enforce payment of the full amount due under a number of notices of assessment issued by the Commissioner on an alternative basis to different taxpayers in respect of the same income, such a possibility does not preclude the Commissioner from securing judgments against different taxpayers in respect of the same income. What would be oppressive would be for the Commissioner to seek to execute such judgments so as to enforce payment of the full amount due under the several judgment debts. Double recovery by the Commissioner would be oppressive (see The Deputy Commissioner of Taxation of the Commonwealth of Australia v Moorebank Proprietary Limited [1988] HCA 29 ; (1988) 165 CLR 55 ('Moorebank') at 67). The raising of concurrent assessments of two or more taxpayers to tax in respect of the same item of income has not hitherto been regarded as beyond the powers of the Commissioner. The appropriateness of alternative assessment to tax of two taxpayers in respect of the same item of income was recognised in a dictum of the High Court in Moorebank at 67. The courts, if not the Commissioner, can diminish the difficulty of concurrent assessments by ensuring that there is no double recovery of tax (per Brennan J in Richard Walter at 201-202).
Case: In re Waring. Westminster Bank v Burton-Butler [1948] Ch 221
Outcome: referred to
In re Waring. Westminster Bank v Burton-Butler [1948] Ch 221 ('In re Waring') the Court had been called upon to decide the entitlement of one of two annuitants named in the will of the late John Arkle Waring. A summons had been issued to determine whether, in setting up the relevant annuity fund, provision should be made for the tax-free annuities for which the will provided at their face value or on an after tax basis. Only one of the two tax-free annuitants was a party to the application. A representative order was sought but refused in circumstances where the other tax-free annuitant was abroad in an enemy occupied country. The effect of the decision of the Court of Appeal was that the annuity fund should be established on the basis that the entitlements were to be determined subject to the imposition of taxation by virtue of s 25 of the Finance Act 1941 (UK). In a later case, Berkeley v Berkeley [1946] A.C. 555 ('Berkeley v Berkeley'), the House of Lords overruled the decision of the Court of Appeal in the proceedings to which Mr Burton-Butler had been a party. In In re Waring the trustees of the will of the late Mr Waring proceeded to ask whether the tax-free annuities for which the will provided ought to be paid in full or be subject to the deduction provided by s 20 of the Finance (No. 2) Act 1945 (UK), which had amended s 25 of the 1941 Act. Jenkins J held that he was constrained to hold so far as Mr Burton-Butler was concerned that the quantum of his annuity must be treated as irretrievably fixed by the decision of the Court of Appeal. However, his Honour found that Mrs Burton-Butler, who had not been a party to the earlier proceeding, was in a different position. His Honour held that the decision of the Court of Appeal could not affect her rights in any way and she was entitled to claim retrospectively the full amount of her annuity calculated in accordance with the law as decided by the House of Lords in Berkeley v Berkeley .