Category Archives: s. 027

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2014] FCA 568 (30 May 2014)

TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – misleading or deceptive conduct in the taking of a competitor’s trade indicia – passing off – secondary reputation in the colour yellow on covers of telephone directories – date for assessing reputation in yellow – relevance of international use of colour yellow – whether respondents’ use of yellow covers on telephone directories was misleading or deceptive – identification of the class of consumers – erroneous assumption as to trade source – intention to deceive – failed intention to deceive – relevance of strength of reputation – relevance of use of common trade indicia – sufficiency of differentiation between similar products – whether respondents have done enough to differentiate their directories – conduct not misleading or deceptive
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – advertisements in telephone directories – misleading advertisement regarding comparative consumer usage
COPYRIGHT – unjustifiable threats of copyright infringement – relevance of bona fides – whether threat is groundless or unjustifiable

Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582 (6 June 2012)

BANKRUPTCY – Appeal from sequestration order – where federal magistrate refused to adjourn creditor’s petition – federal magistrate allowed the creditor’s petition to be amended to correct judgment date and dispensed with service of the amended petition – federal magistrate refused to receive bankrupt’s evidence where bankrupt required for cross-examination on her affidavits but did not attend – whether grounds of appeal disclose any appealable error

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 6) [2011] VSC 294 (22 June 2011)

PRACTICE AND PROCEDURE – Application by a party to examine a witness in the same interest in a joint trial by asking non-leading questions – Application granted in the interest of justice – Cross-Examination of a witness in the same interest considered and compared – Value of such cross-examination considered – Control of examination by the Court considered – Directions given as to procedure to be followed – Sections 11(1), 26, 27, 28 and 42 Evidence Act 2008 – Part 2.3, s.25, 47 and 49 Civil Procedure Act 2010.

Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 (24 September 2010)

EQUITY – director – fiduciary duties – company acting as agent for a joint venture – whether director can act in competition with the principal

PRACTICE AND PROCEDURE – evidence – cross examination – cross examination by two counsel – when permitted

Evidence Act 1995 (Cth) ss 27, 29(1), 41(1)(b)

Huang v University of New South Wales [2010] FCAFC 104 (25 August 2010)

EVIDENCE – foreign evidence – application to obtain evidence from Korea for use in Federal Magistrates Court proceeding – whether appellant denied procedural fairness – interpreter present during morning, but absent in afternoon, when hearing continued and judgment given – application adjourned to enable appellant to apply to vacate trial date – application subsequently dismissed because appellant had not so applied – whether appellant failed to understand requirement to apply to vacate trial date before next mention of application – whether appeal court should deal with merits of application when primary judge had not done so – appellant could have made further application once trial date vacated, but did not do so – need to obtain evidence from Korea depends on course taken by respondents at trial in relation to statements of Korean witness in an exchange of emails with appellant and in an affidavit

Evidence Act 1995 (Cth), ss 27, 63, 63(2)(b), 67, 170, 173, 190(1)(b), 190(3), 190(4)

Dowling v Fairfax Media Publications Pty Ltd [2009] FCA 339 (9 April 2009)

INDUSTRIAL LAW – termination of employment of the applicant – whether applicant’s employment was terminated for a prohibited reason – whether applicant proposed to make a complaint to a body having the capacity under an industrial law to seek compliance with that law – whether applicant proposed to participate in a proceeding under an industrial law – whether respondent has discharged the reverse onus imposed in proceedings under s 807 of the Workplace Relations Act 1996 (Cth) – whether respondent has provided an explanation of the real reason for termination of applicant’s employment

COSTS – general restriction on costs under s 824 of the Workplace Relations Act 1996 (Cth) – whether some or all of the respondents in both proceedings are entitled to costs

Evidence Act 1995 (Cth), s 27

Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (18 December 2008)

[2008] FCA 1929

NATIVE TITLE – non-claimant application under Native Title Act 1993 (Cth) seeking determination that no native title exists over land – previous claimant applications for determination that native title exists struck out for not meeting requirements of Act – previous claimant joined as third respondent under s 84(5) of the Act – third respondent opposes non-claimant application – role of Minister in proceedings – Minister has not abandoned right to participate – Minister not required to establish interest to remain a party – burden of proof – evidentiary burden – requirement to prove negative proposition on balance of probabilities – no presumption of native title – third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred – third respondent has not adduced sufficient evidence to cast doubt on applicant’s case – no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed – applicant entitled to determination that there is no native title over the land

Evidence Act 1995 (Cth), ss 27, 28, 106

Prentice v Cummins (No 6) [2003] FCA 1002 (24 September 2003)

[2003] FCA 1002

PRACTICE AND PROCEDURE – motion to separate causes of action the subject of earlier no case submissions from remaining causes of action – respondents had elected to call no evidence in relation to the causes of action subject to the no case submissions – applicants entitled to cross examine respondent on all issues relevant to proceedings, including the causes of action the subject of no case submissions

BANKRUPTCY – application pursuant to s 121 of the Bankruptcy Act 1966 (Cth) – quantum of Bankrupt’s beneficial interest in matrimonial home registered in joint names – Bankrupt’s wife contributed nearly two-thirds of purchase price – presumption of resulting trust rebutted – common intention to acquire property as joint beneficial owners -Trustees entitled to 50 per cent of net proceeds of sale

BANKRUPTCY – whether Bankrupt was beneficially entitled to share held in his name – company acquired by the Bankrupt’s wife to act as trustee of her family trust – wife paid for share and acquisition costs – presumption of resulting trust applies – Trustees’ claim to share dismissed

Evidence Act 1995 (Cth), ss 11, 27, 26(a), 135(a), (b), 144

R v MSK and MAK [2004] NSWCCA 308 (6 September 2004)

[2004] NSWCCA 308

CATCHWORDS – Criminal Procedure Act 1986, s 294A – Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 – Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 – gang rape – sexual assault in company – appeal against conviction – self-represented defendants – self-represented defendants prohibited from personally cross-examining complainant – whether parliament can validly limit common law right to cross-examine – whether provision discriminatory – whether provision caused trial to be unfair and miscarry – whether s 294A constitutionally invalid for vesting functions in Supreme Court that are incompatible with the exercise of federal judicial power. (D)

R v Thompson [2002] NSWCCA 149 (16 May 2002)

[2002] NSWCCA 149

CRIMINAL LAW – appeal against conviction and sentence – whether trial conducted according to law – whether interventions by trial judge caused trial to become inquisitorial – whether by reason of the judge’s interventions the appellant was denied a fair trial leading to a miscarriage of justice – principles.

Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 (8 November 1983)

[1983] HCA 42

Criminal Law – Miscarriage of justice – Confession evidence – Indecent assault on young child – Victim not called as witness – Absence of satisfactory explanation of failure to call – Duty of prosecution concerning witnesses – Exceptions – Power of judge to direct prosecution to call witness – Power of judge to call witness – Whether conviction unsafe, unjust or dangerous – Whether denial of justice – Criminal Law Consolidation Act 1935 (S.A.), s. 353*.