mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Scally v Southern Health and Social Services Board [1992] 1 AC 294
Outcome: referred to
Their Honours then quoted with approval the passage from Lord Wilberforce's speech in Liverpool set out at [46], and observations to the same effect by the House of Lords in Scally v Southern Health and Social Services Board [1992] 1 AC 294 at 307.
Case: Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577
Outcome: distinguished
The appellant also relied on the observations of Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design &amp; Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 at [59] and [69] to [73]. However, those passages go no further than to recognise, as in Beck , the existence of an implied right of a property owner or a successor in title to use architectural plans. It is true that at [60] their Honours referred to a line of patent cases where an implied licence to use and repair a patented item has been upheld as an implied licence that runs with the patented item itself. But they pointed out that the licence arises because of the rights conferred by letters patent to "make, use, exercise and vend" which can be reflected in the terms of a patent specification. Nothing in that case assists the appellant.
Case: Avel v Multicoin Amusements Pty Ltd [1990] HCA 58 ; (1991) 171 CLR 88
Outcome: distinguished
The appellant complained that the Magistrate imposed on it the burden of establishing that it had a licence to use the source code, whereas the burden lay on the respondent to show that the appellant did not have such a licence. It relied on Avel v Multicoin Amusements Pty Ltd [1990] HCA 58 ; (1991) 171 CLR 88 at 94-95. However all that was there decided was that the onus of proving the absence of the licence of the owner of copyright in relation to an issue of infringement under s 37 or s 38 of the Act lies on the party asserting infringement. That is because the absence of such licence constitutes an element of the wrong of infringement under those sections. The present case is not for infringement of copyright, and the onus submission fails.
Case: TSB Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 72 IPR 492
Outcome: distinguished
The same onus submission was made in relation to defects the appellant submitted existed in the program. The respondent disputed their existence. The appellant contended that the burden was on the respondent to prove there were no defects. Reliance was placed on TSB Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 72 IPR 492 at [125]. That was an infringement case. One of the defences was that the respondent was authorised to reproduce the drawings there in question. Finkelstein J said that the copyright owner had the onus of proving the absence of authorisation "for that is an element of the cause of action for copyright infringement". 81 The burden of proving the existence of defects remained with the appellant. The Magistrate was not satisfied that there were defects. Her Honour considered this issue in detail at [61] to [66] of her reasons. No error has been shown in her treatment of it. 82 The appeal must be dismissed with costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 20 June 2008 Counsel for the Appellant: R Dean Solicitor for the Appellant: R &amp; G Lawyers Counsel for the Respondent: M Rivette Solicitor for the Respondent: Middletons Date of Hearing: 2 June 2008 Date of Judgment: 20 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/938.html
Case: Roy Morgan Research Centre Pty v Commissioner of State Revenue (Victoria) 37 ATR 528
Outcome: referred to
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) (1997) 37 ATR 528 at 533 the Victorian Court of Appeal said that the determination of the employee/independent contractor question involves identifying factors or indicia that are capable of pointing in one direction or another, none of which is conclusive, and weighing or balancing them in order to reach a conclusion. 23 Another indicator that the respondent saw himself as an employee is said to lie in the words used on the front of the proposal to the Salvation Army: "The information in this proposal is [proprietary] and is for the sole use of Centre Stage Management in conjunction with the Salvation Army Family Stores". This was said to demonstrate "his view of the terms of the agreement and it was not that he owned the copyright". The Magistrate said this did not greatly assist in determining the employee/independent contractor issue. She said that at most, it might indicate what one of the parties might have thought the relationship was, and that in this case that was not a matter of significant weight.
Case: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1
Outcome: applied
purpose of an order such as O 62 r 4 is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Leary v Leary [1987] 1 WLR 72. The power to order gross sum of costs is one which has to be exercised judicially, and after giving the parties adequate opportunity to make submissions on the matter: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1 ; Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26.
Case: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Outcome: applied
purpose of an order such as O 62 r 4 is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Leary v Leary [1987] 1 WLR 72. The power to order gross sum of costs is one which has to be exercised judicially, and after giving the parties adequate opportunity to make submissions on the matter: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1 ; Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26.
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916
Outcome: cited
my view, not only it is likely that the additional costs of taxation would impose a significant burden on the respondent without any real prospects of recovering those additional costs, but also the expense, taxation and delay occasion to the respondent is likely to be disproportionate to the amount of the costs recoverable: Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916 , at [28]. The evidence in the affidavit of Kathryn Elizabeth Finlayson sworn and filed 2 October 2009 establishes that the charges for professional costs, calculated according to the rate for a solicitor in force at the relevant times under item 31 of the Second Schedule of the Federal Court Rules , amount to $12,672.00, and disbursements amount to $160.75. The actual costs incurred by the respondent, including disbursements, total $15,813.06.
Case: Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 871
Outcome: followed
my view, the fixing of a gross sum for costs in the sum of $12,832.75 is "logical, fair and reasonable": see Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 871 , at [25]. The order of the Court is that in respect of proceedings QUD 359 of 2008, the appellant pay the costs of the respondent of and incidental to the appeal, which I fix in the amount of $12,832.75. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 6 November 2009 The Appellant appeared in person Solicitor for the Respondent: Minter Ellison Lawyers Date of Hearing: (Heard on the papers) Date of Judgment: 6 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1259.html
Case: Leary v Leary [1987] 1 WLR 72
Outcome: applied
purpose of an order such as O 62 r 4 is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Leary v Leary [1987] 1 WLR 72. The power to order gross sum of costs is one which has to be exercised judicially, and after giving the parties adequate opportunity to make submissions on the matter: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1 ; Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26.
Case: Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788
Outcome: applied
factor which I regard as significant in exercising the discretion to make an order for gross sum of costs, in the circumstances of the present case, is that, having regard to the financial capacity of the appellant, the additional cost for taxation is likely to impose a significant burden on the respondent, without real prospects of recovering those additional costs: Sparnon v Apand Pty Ltd [1998] FCA 164 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788.
Case: Sparnon v Apand Pty Ltd [1998] FCA 164
Outcome: applied
factor which I regard as significant in exercising the discretion to make an order for gross sum of costs, in the circumstances of the present case, is that, having regard to the financial capacity of the appellant, the additional cost for taxation is likely to impose a significant burden on the respondent, without real prospects of recovering those additional costs: Sparnon v Apand Pty Ltd [1998] FCA 164 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788.
Case: Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26
Outcome: applied
purpose of an order such as O 62 r 4 is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Leary v Leary [1987] 1 WLR 72. The power to order gross sum of costs is one which has to be exercised judicially, and after giving the parties adequate opportunity to make submissions on the matter: Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 ; (1999) 93 FCR 1 ; Ualesi (t/a Australian Empire Imports) v Expeditors International Pty Ltd [2006] FCA 26.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".'
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: cited
As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618): 'By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.' 25 Tristar has raised extensive submissions both before the Commission and before Edmonds J in support of its contention that s 16(1) of the WPR Act operates to invalidate the Inquiry because of the introduction of s 16(1) of the WPR Act. Only if the Court comes to the conclusion that there is a ' sufficient likelihood of success ' (see O'Neill (2006) 229 ALR 478) in Tristar's case should the Court then consider granting an interlocutory injunction. The Court is required to scrutinise the claim to satisfy itself at least that there is a 'likelihood of success' before proceeding to grant such relief. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Gleeson CJ at 217 said: 'In McCarty v North Sydney Municipal Council (126), the Chief Judge in Equity described the proposition that a plaintiff seeking an interlocutory injunction must show at least a probability that he will succeed in establishing his title to the relief sought at the final hearing as "so well established that no authority is really needed in support of it".' 31 The Court is required to determine 'the practical consequences likely to flow from the interlocutory order sought' see: O'Neill (2006) 229 ALR [71] per Gummow and Hayne JJ. Section 164(3)(a) of the IR Act provides that the Commission may make a non-disclosure order if it is satisfied ' that it is necessary to do so in the interests of justice ' (see s 164A(3)(b)). Further, the Commission, at para [85] of its decision, referred to the protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74 ; (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take into account. However Mr Hong's concerns can be addressed, if justified, during the Commission's hearing in light of the protection provided by s 164(3)(a) of the IR Act and established principles relating to self-incrimination. The Commission has the same power in relation to the conduct of hearings before it as does the Supreme Court (see s 164(1) of the IR Act).
Case: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618
Outcome: cited
As to the first issue, namely whether there is a serious question to be tried, Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 said at page 478 (referring to the joint judgment of Kitto and Owen JJ in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1968) 118 CLR 618): 'By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.'
Case: BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189
Outcome: referred to
The Minister submits that Edmonds J has already determined whether interlocutory relief should be granted, by refusing the application before him. Tristar had sought an order restraining the Commission from issuing any summons to produce documents. The Minister says that the summonses foreshadowed in the proceedings before Edmonds J have now issued. Further, although Mr Hong is now a party, and was at all material times, the corporate mind of Tristar as its Managing Director, there are no materially changed circumstances which would justify the Court entertaining the present application: see BP Chemicals ANZ Pty Limited v Manildra Starches Pty Limited [1997] FCA 1189.
Case: Castlemaine Tooheys Limited and Others v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: cited
The principles governing the issue of an interlocutory injunction were stated by Mason ACJ (as he then was) in Castlemaine Tooheys Limited and Others v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 where his Honour said: 'In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.'
Case: Environmental Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74 ; (1993) 178 CLR 477
Outcome: referred to
The Court is required to determine 'the practical consequences likely to flow from the interlocutory order sought' see: O'Neill (2006) 229 ALR [71] per Gummow and Hayne JJ. Section 164(3)(a) of the IR Act provides that the Commission may make a non-disclosure order if it is satisfied ' that it is necessary to do so in the interests of justice ' (see s 164A(3)(b)). Further, the Commission, at para [85] of its decision, referred to the protection provided by the principle against self incrimination: see Environmental Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74 ; (1993) 178 CLR 477 at 548. The risk that Mr Hong may be exposed to self incrimination is not by itself a determinative consideration but merely a factor for the Court to take into account. However Mr Hong's concerns can be addressed, if justified, during the Commission's hearing in light of the protection provided by s 164(3)(a) of the IR Act and established principles relating to self-incrimination. The Commission has the same power in relation to the conduct of hearings before it as does the Supreme Court (see s 164(1) of the IR Act).
Case: Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408
Outcome: referred to
The Court is satisfied that the balance of convenience or the 'balance of justice' (see Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 413) is in favour of the relief sought being declined.
Case: Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280
Outcome: referred to
It does not follow that the Court is required as of course, to grant an interlocutory injunction if a claim is made that is merely arguable. Despite the submissions of Senior Counsel for Tristar concerning the effect of the Terms of Reference, particularly the submission claiming that the first term was directed at the employer and employee relationship within Tristar, I am not satisfied that Tristar has established a ' fair prima facie case and a fair probability of being able to succeed in that case at the hearing. ': see Roper CJ in Linfield Linen Pty Ltd v Nejain (1951) 51 SR (NSW) 280 at 281. 27 The Court has considered the submission of Tristar and critically examined the findings of the Commission concerning the effect of s 16(1) of the WPR Act arising from such examination. The effect of s 16(1) of the WPR Act is arguable, but the Court is unable to draw the conclusion to the requisite standard to justify the grant of injunctive relief. That is, the Court is not satisfied that there is a 'probability' that Tristar will succeed on this question. Accordingly, the Court finds that a serious question to be tried, as that term has been interpreted by the above authorities, has not been established. 28 In determining the harm that might be sustained by Mr Hong if the injunction is not granted, the evidence adduced by Mr Hong must be considered. Relevantly, his affidavit states such alleged prejudice as follows: '8. I reside and work in Adelaide, South Australia. Although I am required to travel during the course of my employment, it is difficult for me to perform my duties as a Managing Director of the Arrowcrest Group if I am required to give evidence in Sydney on 23 March 2007. 9. The Arrowcrest Group conducts a large business and many negotiations occur with respect to potential contracts and deals within and outside of Australia I am most concerned about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature. This could result in Tristar specifically and the Arrowcrest Group generally suffering detriment. 10. On or about 19 February 2007 the Office of Workplace Services commenced a prosecution against Tristar in the Federal Court of Australia alleging a number of issues including that Tristar has "injured" their workers because of an alleged failure to provide work to these workers. The prosecution before the Federal Court deals with many similar issues as those encompassed in the terms of reference and therefore I am concerned that being compelled to give evidence in the Inquiry could prejudice Tristar's position.'
Case: New South Wales v Commonwealth (2006) 82 ALJR 34
Outcome: considered
In particular, Tristar submits that the Commission erred in holding that the word 'apply' in s 16(1) operated to limit the words 'in relation to' to those State Industrial Laws which created rights and obligations. Tristar submits that the words 'in relation to' contained in s 16(1) of the WPR Act apply to industrial matters broadly and are not merely confined to matters relating to employer and employee relations. Tristar submits that s 16(1)(a) would be constitutionally invalid if the words 'in relation to' were not read down (see 48-51), and that the decision of the Commission is contrary to the decision of the finding of the High Court of Australia in New South Wales v Commonwealth (2006) 82 ALJR 34 especially at [346] to [377].