mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: GenRx Pty Limited v Les Laboratoires Servier (2007) 71 IPR 606
Outcome: cited
After GenRx sought interlocutory relief in these proceedings ( GenRx Pty Limited v Les Laboratoires Servier (2007) 71 IPR 606) , Servier undertook not to distribute the stamp further and has issued to doctors a second form of stamp. The text of that stamp, about which GenRx does not complain, is: 52 In the pleading, GenRx alleges that the stamp, when used on patient prescriptions, conveys the following express or implied representations ('the stamp representations'): 1. Brand substitution not permitted for COVERSYL. 2. &#945;Brand substitution not permitted for COVERSYL. 3. Brand substitution for New COVERSYL is never permissible. 4. There are no other perindopril products substitutable with New COVERSYL. 53 GenRx submits that the stamp conveys an impression of a bulk, blanket prohibition on substitution for Coversyl. That impression, GenRx submits, is reinforced by the use of the passive voice in the stamp. In that regard GenRx contrasts the second stamp, which uses the active voice and makes it clear that it is the doctor's decision not to permit substitution. GenRx accepts that Servier is entitled to attempt to persuade doctors to tick the box. However, GenRx submits, in the stamp and in each advertisement Servier has represented that there is some regulatory prohibition on generic substitution of Coversyl. GenRx submits that those seeing the stamp will be misled into thinking the stamp, with a pre-ticked box, comes from a regulatory body such as the TGA. GenRx says that the stamp therefore represents that there is a regulatory reason why there can be no substitution for Coversyl and that doctors who accept this will use the stamp to convey that message to the pharmacist.
Case: Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216
Outcome: cited
In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: &#8226; It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). &#8226; Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). &#8226; Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. &#8226; It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles.
Case: Janssen Pharmaceutica Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227
Outcome: cited
At the hearing GenRx did not address ss 53 or 55 of the Act except to point out two matters. First, that subs 53(c) uses the word "benefit" and prohibits representations that ' represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have '. Secondly, that the classes of alleged misleading conduct include a representation that the product has a difference where, it submits, any such difference is not a distinction of significance and is accordingly not a benefit ( Janssen Pharmaceutica Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227). No further submissions in relation to these matters and no other submissions in relation to these sections were made by GenRx or by Servier. 150 No submissions were directed to the other criteria in those sections. No submissions were made as to whether, if Servier were found to have contravened s 52, it would follow that subs 53(a) and (c) or s 55 would also have been contravened. Accordingly, I do not propose to deal further with these allegations. 151 For convenience and in summary, the conclusions to which I have come are as follows: &#8226; The stamp issued by Servier to doctors to be printed on prescriptions for Coversyl contains representations that are misleading or deceptive or likely to mislead pharmacists and patients within s 52 of the Act. The stamp representations are not likely to mislead or deceive medical practitioners. &#8226; Servier is liable for the stamp representations and has thereby contravened s 52. &#8226; The first banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners. &#8226; The first whole page advertisement caused to be published by Servier contains a representation as to improved stability that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52. &#8226; The second whole page advertisement caused to be published by Servier contains a representation in relation to the indication for Coverysl for stable coronary artery disease that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52. &#8226; The second banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners.
Case: Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574
Outcome: cited
Servier distributed the stamp as part of its campaign to have prescriptions issued that would not permit pharmacists to substitute generic perindopril products for new Coversyl. The message on the stamp was devised by Servier. There can be no dispute that, in distributing the stamp and placing the advertisements, Servier tried to influence doctor's prescribing of perindopril compounds. Servier's suggestion that its responsibility is limited to the distribution of the stamp, unused and closed, is untenable. The stamp was clearly provided for use and intended by Servier to be used to print the text of the stamp and to communicate such representations as it conveys. The language of the stamp was devised by Servier. Servier seeks to avoid liability for the representations conveyed by the stamp as used. It cannot do so. The stamp was given to doctors by Servier's representatives who urged doctors to use it. Servier is directly liable for the misleading representations by putting the stamp into circulation in circumstances where it was intended to be used ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354 ; Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574).
Case: National Exchange Pty Ltd v ASIC (2004) ATPR 42-000
Outcome: cited
No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]).
Case: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73
Outcome: cited
In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: &#8226; It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). &#8226; Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). &#8226; Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. &#8226; It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles.
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354
Outcome: cited
Servier distributed the stamp as part of its campaign to have prescriptions issued that would not permit pharmacists to substitute generic perindopril products for new Coversyl. The message on the stamp was devised by Servier. There can be no dispute that, in distributing the stamp and placing the advertisements, Servier tried to influence doctor's prescribing of perindopril compounds. Servier's suggestion that its responsibility is limited to the distribution of the stamp, unused and closed, is untenable. The stamp was clearly provided for use and intended by Servier to be used to print the text of the stamp and to communicate such representations as it conveys. The language of the stamp was devised by Servier. Servier seeks to avoid liability for the representations conveyed by the stamp as used. It cannot do so. The stamp was given to doctors by Servier's representatives who urged doctors to use it. Servier is directly liable for the misleading representations by putting the stamp into circulation in circumstances where it was intended to be used ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354 ; Johnson &amp; Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574).
Case: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: applied
In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: &#8226; It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). &#8226; Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). &#8226; Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. &#8226; It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles. 79 It is not necessary for GenRx to establish that Ms Crisp, or anyone else, was actually misled or that she took steps consequent upon her misunderstanding ( Astrazeneca at [33]). However, it is relevant that Ms Crisp laboured under an erroneous assumption as to the substitutability of new Coversyl, arising from the use of the stamp issued by Servier and used by the prescribing doctor ( Astrazeneca at [36]; Taco Bell at 202). I am not satisfied that Ms Crisp's assumption was extreme or fanciful. To the contrary it was, for a busy pharmacist who dispenses numerous different drugs daily, a reasonable reaction on the part of an ordinary and reasonable pharmacist. The stamp did not simply cause confusion or wonderment ( Campomar at [106]), it misled Ms Crisp. It caused her to take remedial action, without which she would have continued to believe that brand substitution for Coversyl was not generally permitted. Accordingly, Ms Crisp laboured under an error ( Taco Bell ).
Case: Abebe v Commonwealth [1999] HCA 14 ; 197 CLR 510
Outcome: followed
Again, considerable reservation must be expressed with too readily drawing conclusions based upon individual exchanges recorded in a transcript. Tribunal members must be free to control their own procedures and to confine, when appropriate, evidence being given. Further, given the importance of the issues being addressed by the Tribunal, it must be recognised that it may not only be the applicant in those proceedings who may experience distress but also Tribunal members themselves may understandably exhibit a degree of frustration. As noted by Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510 at 577 8: [191] ...the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision. 17 It is of importance that a party to administrative proceedings is confident that the proceedings have been conducted fairly. A comment to " wind it up " undermines that confidence. So, too, does another exchange when a Tribunal member observed: " Do I have to squeeze information from you... ? " Not only could the First Appellant's confidence in the impartiality of the proceedings have been undermined by such exchanges, the fair-minded observer would also be similarly concerned. Even though it may be accepted that a Tribunal member, in the context of an inquisitorial review, may well frame questions differently to the manner in which questions may be asked by counsel or judges in judicial proceedings, the manner in which these questions -- and other questions -- were pursued was inappropriate. It is of obvious importance that a Tribunal member remains, and is seen to remain, measured in the manner in which a hearing proceeds and is not seen to rush questions and answers such that an informed observer may justifiably form a view that the Tribunal is not carefully seeking and considering the evidence being adduced in a measured and careful manner.
Case: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; 222 ALR 411
Outcome: considered
In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
Case: Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426
Outcome: followed
The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, " justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing ": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The " usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed ": Industry Research &amp; Development Board v IMT Ltd [2001] FCA 85 at [40] .
Case: Industry Research &amp; Development Board v IMT Ltd [2001] FCA 85
Outcome: followed
The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, " justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing ": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The " usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed ": Industry Research &amp; Development Board v IMT Ltd [2001] FCA 85 at [40] .
Case: Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 ; 76 ALD 424
Outcome: followed
It is accepted that a reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is also accepted that it is not sufficient if the reasonable bystander merely " has a vague sense of unease or disquiet ": Jones v Australian Competition &amp; Consumer Commission [2002] FCA 1054 at [100] , 76 ALD 424 at 441. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also necessarily take into account the manner in which the legislature has directed the Tribunal to carry out its functions (ie s 420 of the 1958 Act) and the inquisitorial nature of the review being undertaken.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; 207 ALR 12
Outcome: followed
In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).