Question:
<citphrase id="cp0.0">cited from="[2006] FCA 364">evidence</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 364">whether survey evidence is admissible</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 364">whether exception to the hearsay rule applies</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 364">whether discretion should be exercised to exclude survey evidence</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 364">non-compliance with practice note 11.</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 363">evidence</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 363">opinion evidence as to likely consumer behaviour excluded</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 363">not outside the knowledge and experience of a trier of fact</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 363">evidence of opinion as to ordinary human nature not admissible</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 363">alternatively evidence would be excluded on discretionary grounds</citphrase>
<citphrase id="cp3.0">citing from="[2008] FCA 559">patents</citphrase>
<citphrase id="cp3.1">citing from="[2008] FCA 559">validity</citphrase>
<citphrase id="cp3.2">citing from="[2008] FCA 559">patent for (+)-enantiomer of the racemate, citalopram, and for method of obtaining that enantiomer</citphrase>
<citphrase id="cp3.3">citing from="[2008] FCA 559">patentee also held previous patent for the racemate</citphrase>
<citphrase id="cp3.4">citing from="[2008] FCA 559">both the racemate and the enantiomer, drugs for the treatment of depression</citphrase>
<citphrase id="cp3.5">citing from="[2008] FCA 559">(+)-citalopram claimed to be therapeutically more effective than citalopram</citphrase>
<citphrase id="cp3.6">citing from="[2008] FCA 559">challenge to validity of claim for (+)-citalopram</citphrase>
<citphrase id="cp3.7">citing from="[2008] FCA 559">construction of claim</citphrase>
<citphrase id="cp3.8">citing from="[2008] FCA 559">whether for (+)-enantiomer as an independently existing molecule or whether also for (+)-enantiomer when part of racemate</citphrase>
<citphrase id="cp3.9">citing from="[2008] FCA 559">whether claim for (+)-enantiomer anticipated by patent for citalopram</citphrase>
<citphrase id="cp3.10">citing from="[2008] FCA 559">whether (+)-enantiomer as an independent molecule was obvious</citphrase>
<citphrase id="cp3.11">citing from="[2008] FCA 559">australian test for obviousness</citphrase>
<citphrase id="cp3.12">citing from="[2008] FCA 559">application of that test to product claims for the (+)-enantiomer, and to method claim for the method of obtaining it</citphrase>
<citphrase id="cp3.13">citing from="[2008] FCA 559">lack of utility</citphrase>
<citphrase id="cp3.14">citing from="[2008] FCA 559">product claim for a dosage that, inter alia , was less than and more than a useful dosage range. held : (1) upon its proper construction, product claimed was the independently existing enantiomer; (2) the invention of the independently existing enantiomer was not anticipated by the patent for the racemate; (3) the australian "matter of routine" test for obviousness, when applied to the invention of the product, equated to the question whether those skilled in the art, as a matter of routine, would have had the goal of obtaining separate enantiomers in the expectation that one would be a desirable drug for the treatment of depression; (4) one of the product claims relating to dosage failed test of utility; (5) on the evidence, neither the (+)-enantiomer nor the method for obtaining it was obvious at the priority date.   patents</citphrase>
<citphrase id="cp3.15">citing from="[2008] FCA 559">extension of term</citphrase>
<citphrase id="cp3.16">citing from="[2008] FCA 559">patent for (+)-enantiomer of the racemate, citalopram, and for method of obtaining that enantiomer</citphrase>
<citphrase id="cp3.17">citing from="[2008] FCA 559">patentee also held previous patent for the racemate</citphrase>
<citphrase id="cp3.18">citing from="[2008] FCA 559">both the racemate and the enantiomer, drugs for the treatment of depression</citphrase>
<citphrase id="cp3.19">citing from="[2008] FCA 559">(+)-citalopram claimed to be therapeutically more effective than citalopram</citphrase>
<citphrase id="cp3.20">citing from="[2008] FCA 559">both cipramil (goods based on racemic citalopram) and lexapro (goods based on (+)-citalopram) entered in australian register of therapeutic goods (artg)</citphrase>
<citphrase id="cp3.21">citing from="[2008] FCA 559">application for extension of term of patent for (+)-citalopram</citphrase>
<citphrase id="cp3.22">citing from="[2008] FCA 559">commissioner of patents initially granted extension sought</citphrase>
<citphrase id="cp3.23">citing from="[2008] FCA 559">subsequently, following hearing before her delegate, decided to reduce term of extension on ground that "first regulatory approval date" was date when goods cipramil based on racemate had been entered in artg</citphrase>
<citphrase id="cp3.24">citing from="[2008] FCA 559">appeal by patentee</citphrase>
<citphrase id="cp3.25">citing from="[2008] FCA 559">opponent pharmaceutical company contending that no extension at all should have been granted because application for extension had been made outside six month period following date of first inclusion in artg of goods containing the (+)-enantiomer, namely, cipramil, of which the active pharmaceutical substance was the racemate</citphrase>
<citphrase id="cp3.26">citing from="[2008] FCA 559">questions of proper construction of patents act 1990 (cth) ss 70 , 71 , 77</citphrase>
<citphrase id="cp3.27">citing from="[2008] FCA 559">whether goods based on racemate "contain" individual enantiomer</citphrase>
<citphrase id="cp3.28">citing from="[2008] FCA 559">meaning of "first regulatory approval date" in s 70(5) of act. held : (1) cipramil contained pharmaceutical substance (+)-citalopram; (2) application for extension of term of patent had not been made within six months of first inclusion in artg of cipramil; (3) in circumstances, commissioner had lacked power to grant any extension to term of patent; (4) register of patents to be rectified by removal of particulars of extension.   patents</citphrase>
<citphrase id="cp3.29">citing from="[2008] FCA 559">infringement</citphrase>
<citphrase id="cp3.30">citing from="[2008] FCA 559">patent for (+)-enantiomer of the racemate, citalopram, and for method of obtaining that enantiomer</citphrase>
<citphrase id="cp3.31">citing from="[2008] FCA 559">generic company applying to therapeutic goods administration (tga) for registration of generic drug based on (+)-enantiomer of citalopram</citphrase>
<citphrase id="cp3.32">citing from="[2008] FCA 559">whether doctrine of "mechanical equivalents" or "non-essential integers" applicable to method of obtaining pharmaceutical compound</citphrase>
<citphrase id="cp3.33">citing from="[2008] FCA 559">generic pharmaceutical company producing generic drug only for purpose of applying for regulatory approval</citphrase>
<citphrase id="cp3.34">citing from="[2008] FCA 559">s 78(2) of patents act 1990 (cth).</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FCA 559" id="cs0">I have not overlooked the decision of the High Court in Lee v The Queen (1998) 195 CLR 594 or Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 ; (2006) 229 ALR 179. I do not think, however, that they stand against the approach that I have taken above. </sentence>
<sentence from="[2008] ATMO 6" id="cs1">Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 A variety of market research documents were found admissible, but only insofar as they could be used for a non-hearsay purpose.</sentence>
</citances>
<legistitles>
<title id="l0">EVIDENCE ACT 1995 </title>
<title id="l1">EVIDENCE ACT 1995 - SECT 9 Effect of Act on other laws</title>
<title id="l2">EVIDENCE ACT 1995 - SECT 60 Exception: evidence relevant for a non-hearsay purpose</title>
<title id="l3">EVIDENCE ACT 1995 - SECT 77 Exception: evidence relevant otherwise than as opinion evidence</title>
<title id="l4">EVIDENCE ACT 1995 - SECT 136 General discretion to limit use of evidence</title>
<title id="l5">TRADE PRACTICES ACT 1974 </title>
<title id="l6">TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 52 Misleading or deceptive conduct.</title>
<title id="l7">TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 53 False representations.</title>
<title id="l8">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] FCA 588">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2005] FCA 588">subpoenas for production</citphrase>
<citphrase id="cp0.2">cited from="[2005] FCA 588">addressed to third parties</citphrase>
<citphrase id="cp0.3">cited from="[2005] FCA 588">motion to set aside subpoenas</citphrase>
<citphrase id="cp0.4">cited from="[2005] FCA 588">relevance to hearing on whether proceeding should continue as representative proceeding</citphrase>
<citphrase id="cp0.5">cited from="[2005] FCA 588">whether 'fishing'</citphrase>
<citphrase id="cp0.6">cited from="[2005] FCA 588">whether oppressive.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] FCAFC 68">admiralty</citphrase>
<citphrase id="cp0.1">cited from="[2005] FCAFC 68">arrest</citphrase>
<citphrase id="cp0.2">cited from="[2005] FCAFC 68">meaning of the phrase 'the owner' in part iii of the admiralty act 1998 (cth)</citphrase>
<citphrase id="cp0.3">cited from="[2005] FCAFC 68">sale of vessel</citphrase>
<citphrase id="cp0.4">cited from="[2005] FCAFC 68">completion of sale before the commencement of proceeding but after cause of action arose</citphrase>
<citphrase id="cp0.5">cited from="[2005] FCAFC 68">vendor being the 'relevant person' remained entered as owner on the liberian register</citphrase>
<citphrase id="cp0.6">cited from="[2005] FCAFC 68">whether the phrase 'the owner' necessarily includes the registered owner irrespective of the terms and state of completion of the underlying transaction</citphrase>
<citphrase id="cp0.7">cited from="[2005] FCAFC 68">vendor held not to be 'the owner'.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">ADMIRALTY ACT 1988 </title>
<title id="l1">ADMIRALTY ACT 1988 - SECT 3 Interpretation</title>
<title id="l2">ADMIRALTY ACT 1988 - SECT 17 Right to proceed in rem on owner's liabilities</title>
<title id="l3">ADMIRALTY ACT 1988 - SECT 18 Right to proceed in rem on demise charterer's liabilities</title>
<title id="l4">ADMIRALTY ACT 1988 - SECT 19 Right to proceed in rem against surrogate ship</title>
<title id="l5">DIPLOMATIC PRIVILEGES AND IMMUNITIES ACT 1967 </title>
<title id="l6">FOREIGN STATES IMMUNITIES ACT 1985 </title>
<title id="l7">FOREIGN STATES IMMUNITIES ACT 1985 - SECT 3 Interpretation</title>
<title id="l8">FOREIGN STATES IMMUNITIES ACT 1985 - SECT 36 Heads of foreign States</title>
<title id="l9">SHIPPING REGISTRATION ACT 1981 </title>
<title id="l10">SHIPPING REGISTRATION ACT 1981 - SECT 45 Powers of disposal by owner</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] FCA 1212">trade practices</citphrase>
<citphrase id="cp0.1">cited from="[2005] FCA 1212">resale price maintenance</citphrase>
<citphrase id="cp0.2">cited from="[2005] FCA 1212">misleading and deceptive conduct</citphrase>
<citphrase id="cp0.3">cited from="[2005] FCA 1212">application for injunctions, declarations and pecuniary penalties arising out of the operation of a scheme whereby products were distributed through a network of sales representatives</citphrase>
<citphrase id="cp0.4">cited from="[2005] FCA 1212">penalties to be imposed for contravening conduct</citphrase>
<citphrase id="cp0.5">cited from="[2005] FCA 1212">factors to be considered in determining appropriate penalties.</citphrase>
<citphrase id="cp1.0">cited from="[2005] FCA 152">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2005] FCA 152">resale price maintenance</citphrase>
<citphrase id="cp1.2">cited from="[2005] FCA 152">supply of beauty products</citphrase>
<citphrase id="cp1.3">cited from="[2005] FCA 152">whether conduct involved the respondent 'making it known' that it would not supply products unless the second person agreed not to discount the product</citphrase>
<citphrase id="cp1.4">cited from="[2005] FCA 152">admission of conduct falling within s 96(3)(b) and (f) trade practices act 1974 (cth)</citphrase>
<citphrase id="cp1.5">cited from="[2005] FCA 152">consideration of appropriate penalty to impose in the circumstances</citphrase>
<citphrase id="cp1.6">cited from="[2005] FCA 152">application for injunction pursuant to s 80 of the act</citphrase>
<citphrase id="cp1.7">cited from="[2005] FCA 152">whether injunction appropriate remedy in the circumstances.</citphrase>
<citphrase id="cp2.0">cited from="[1996] FCA 1134">[ database search ] [ name search ] [ recent decisions ] [ noteup ] [ lawcite ] [ help ] n w frozen foods proprietary ltd v australian competition  consumer commission [1996] fca 1134 (20 december 1996)    trade practices act</citphrase>
<citphrase id="cp2.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp2.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp2.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp2.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp2.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp2.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp2.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp2.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp2.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp2.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp2.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp2.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp2.13">cited from="[1996] FCA 1134">inappropriateness of diminishing the credit to be given a corporation for co-operation and admission of liability by reference to any costs saving it may achieve thereby</citphrase>
<citphrase id="cp2.14">cited from="[1996] FCA 1134">reference to u.s. law conceding the u.s. federal trade commission "a special competence in formulating remedies"</citphrase>
<citphrase id="cp2.15">cited from="[1996] FCA 1134">discussion of the question for the court where penalty is the subject of an agreed joint submission.</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 263" id="cs0"/>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp1.0">cited from="[1991] FCA 655">appeals</citphrase>
<citphrase id="cp1.1">cited from="[1991] FCA 655">leave to appeal from an interlocutory judgment</citphrase>
<citphrase id="cp1.2">cited from="[1991] FCA 655">whether the full court should regard itself as bound to apply a formula derived from niemann v. electronic industries ltd [1978] vicrp 44 ; (1978) vr 431</citphrase>
<citphrase id="cp1.3">cited from="[1991] FCA 655">width of the discretion to grant leave to appeal under s. 24(1a) of the federal court of australia act 1976 .  patents</citphrase>
<citphrase id="cp1.4">cited from="[1991] FCA 655">taking of an account of profits</citphrase>
<citphrase id="cp1.5">cited from="[1991] FCA 655">whether any part of general overhead costs is allowable as a deduction in the determination of the profits made by an infringer</citphrase>
<citphrase id="cp1.6">cited from="[1991] FCA 655">principles relating to the taking of an account of profits</citphrase>
<citphrase id="cp1.7">cited from="[1991] FCA 655">whether the case of a side-line is an exceptional case</citphrase>
<citphrase id="cp1.8">cited from="[1991] FCA 655">reference to standard accountancy methods as indicating what must be deducted in order to determine the amount of a profit</citphrase>
<citphrase id="cp1.9">cited from="[1991] FCA 655">discussion of a line of cases establishing the approach adopted in the united states to the solution of this problem</citphrase>
<citphrase id="cp1.10">cited from="[1991] FCA 655">onus on wrongdoer who has mixed legitimate activities with activities involving infringement of another's property right to justify the particular apportionment of costs adopted by him in his accounts</citphrase>
<citphrase id="cp1.11">cited from="[1991] FCA 655">declaration of principle that the infringer is generally at liberty to show that various categories of overhead contributed to the obtaining of the relevant profit and to show in what proportion they should be allocated in the taking of the account of profits</citphrase>
<citphrase id="cp1.12">cited from="[1991] FCA 655">discussion of whether the profits for which the defendants must account are (in the case of a patented closure for a canister) the profits for the closures only or for the closures and canisters to which they are fitted</citphrase>
<citphrase id="cp1.13">cited from="[1991] FCA 655">whether the infringer's particular pricing policy can be relied on by him as a contribution by him to the profits unrelated to the patent</citphrase>
<citphrase id="cp1.14">cited from="[1991] FCA 655">whether the profits of the whole canister and closure are fairly traceable to the use by the infringer of the invention.</citphrase>
<citphrase id="cp2.0">citing from="[2008] FMCA 238">migration</citphrase>
<citphrase id="cp2.1">citing from="[2008] FMCA 238">review of decision of refugee review tribunal</citphrase>
<citphrase id="cp2.2">citing from="[2008] FMCA 238">whether application is an abuse of process</citphrase>
<citphrase id="cp2.3">citing from="[2008] FMCA 238">prior judicial proceedings in respect of refugee review tribunal decision.</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FMCA 238" id="cs0">On 13 November 2006 Tracey J of the Federal Court of Australia dismissed the appeal ( SZIJA v Minister for Immigration and Multicultural Affairs [2006] FCA 1484). Again, it is apparent from Tracey J's decision that he had regard to the decision of the Tribunal. In particular, Tracey J noted that: " the task of the Tribunal is to come to a judgment, based on the evidence before it, as to whether an applicant might face persecution for Convention reasons if returned to his or her country of origin. Any such judgment must, however, be based on evidence. The Tribunal in this case, found itself in the unhappy position of having insufficient evidence before it to enable it to form the necessary judgment one way or another. In these circumstances it could not engage in conjecture or surmise. " </sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">MIGRATION ACT 1958 </title>
<title id="l2">MIGRATION ACT 1958 - SECT 430 Refugee Review Tribunal to record its decisions etc.</title>
<title id="l3">FEDERAL MAGISTRATES COURT RULES 2001 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCA 1976">trade practices</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCA 1976">contravention of pt iv of trade practices act 1974 (cth), s 45(2)</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCA 1976">arriving at and giving effect to understanding having purpose or likely effect of substantially lessening competition</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCA 1976">understanding between respondent (qantas) and other international airlines as to surcharge to be imposed on international carriage of freight in consequence of increases in price of fuel</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCA 1976">fuel surcharge understanding</citphrase>
<citphrase id="cp0.5">cited from="[2008] FCA 1976">agreed statement of facts and joint submissions</citphrase>
<citphrase id="cp0.6">cited from="[2008] FCA 1976">penalty of $20 million and injunction for three years sought by both parties</citphrase>
<citphrase id="cp0.7">cited from="[2008] FCA 1976">consideration of relevant factors and of role of court</citphrase>
<citphrase id="cp0.8">cited from="[2008] FCA 1976">relevant considerations</citphrase>
<citphrase id="cp0.9">cited from="[2008] FCA 1976">appropriateness of injunction of limited duration.</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1617">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1617">cartel conduct</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1617">visy companies and amcor companies held 90 per cent of the corrugated fibreboard packaging market in australia</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1617">between january 2000 and october 2004 visy and amcor engaged in price-fixing and market sharing contrary to s 45 of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 1617">amcor received conditional immunity from action by the australian competition and consumer commission</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCA 1617">commission brought action against visy companies and three of its senior officers four categories of contraventions: over-arching understanding in 2000 to maintain market share and increase prices; annual price increase understandings each year for 2000 to 2003, customer price understandings and compensation understandings</citphrase>
<citphrase id="cp1.6">cited from="[2007] FCA 1617">respondents admitted liability</citphrase>
<citphrase id="cp1.7">cited from="[2007] FCA 1617">parties submitted an agreed statement of facts</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 265">leahy petroleum</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 265">retail pty ltd</citphrase>
<citphrase id="cp3.0">cited from="[2004] FCAFC 72">trade practices</citphrase>
<citphrase id="cp3.1">cited from="[2004] FCAFC 72">civil penalty</citphrase>
<citphrase id="cp3.2">cited from="[2004] FCAFC 72">contravention of s 10 of the petroleum retail marketing sites act 1980 (cth)</citphrase>
<citphrase id="cp3.3">cited from="[2004] FCAFC 72">parties present joint submissions on the appropriate pecuniary penalty</citphrase>
<citphrase id="cp3.4">cited from="[2004] FCAFC 72">direction under federal court of australia act 1976 (cth) asking whether the court must consider whether the proposed amount is within the permissible range and, if so, impose the "agreed" penalty</citphrase>
<citphrase id="cp3.5">cited from="[2004] FCAFC 72">powers and responsibilities of court faced with joint submission on penalty.</citphrase>
<citphrase id="cp6.0">cited from="[1996] FCA 1134">[ database search ] [ name search ] [ recent decisions ] [ noteup ] [ lawcite ] [ help ] n w frozen foods proprietary ltd v australian competition  consumer commission [1996] fca 1134 (20 december 1996)    trade practices act</citphrase>
<citphrase id="cp6.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp6.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp6.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp6.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp6.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp6.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp6.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp6.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp6.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp6.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp6.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp6.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp6.13">cited from="[1996] FCA 1134">inappropriateness of diminishing the credit to be given a corporation for co-operation and admission of liability by reference to any costs saving it may achieve thereby</citphrase>
<citphrase id="cp6.14">cited from="[1996] FCA 1134">reference to u.s. law conceding the u.s. federal trade commission "a special competence in formulating remedies"</citphrase>
<citphrase id="cp6.15">cited from="[1996] FCA 1134">discussion of the question for the court where penalty is the subject of an agreed joint submission.</citphrase>
<citphrase id="cp7.0">cited from="[1984] FCA 363">trade practices</citphrase>
<citphrase id="cp7.1">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp7.2">cited from="[1984] FCA 363">sale of petroleum by respondent to dealer</citphrase>
<citphrase id="cp7.3">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp7.4">cited from="[1984] FCA 363">relevant matters</citphrase>
<citphrase id="cp7.5">cited from="[1984] FCA 363">two contraventions of act</citphrase>
<citphrase id="cp7.6">cited from="[1984] FCA 363">same officer of company involved</citphrase>
<citphrase id="cp7.7">cited from="[1984] FCA 363">both contraventions in relation to one dealer</citphrase>
<citphrase id="cp7.8">cited from="[1984] FCA 363">whether injunction appropriate</citphrase>
<citphrase id="cp7.9">cited from="[1984] FCA 363">additional penalty  trade practices act 1974 ss. 76 , 77 , 80  trade practices</citphrase>
<citphrase id="cp7.10">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp7.11">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp7.12">cited from="[1984] FCA 363">whether injunction should go</citphrase>
<citphrase id="cp7.13">cited from="[1984] FCA 363">trade practices act 1974 (cth), ss 76 , 77 , 80 . observations concerning matters relevant to the quantum of a penalty for engaging in resale price maintenance and concerning whether an injunction should go and the terms of any such injunction.</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 754" id="cs0">In Australian Competition and Consumer Commissioner v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 107-108 [25] - [27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil [2004] FCAFC 72 ; (2004) ATPR 41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24]). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty. </sentence>
</citances>
<legistitles>
<title id="l0">EVIDENCE ACT 1995 </title>
<title id="l1">EVIDENCE ACT 1995 - SECT 45 Production of documents</title>
<title id="l2">EVIDENCE ACT 1995 - SECT 191 Agreements as to facts</title>
<title id="l3">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1177">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1177">motion to set aside deed in relation to settlement of proceedings</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1177">lack of good faith asserted insolvency</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1177">liquidator's duty to act independently in the best interests of the company</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 495">discrimination law</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 495">racial discrimination</citphrase>
<citphrase id="cp2.2">cited from="[2005] FCA 495">employment</citphrase>
<citphrase id="cp2.3">cited from="[2005] FCA 495">distinction "based on" race</citphrase>
<citphrase id="cp2.4">cited from="[2005] FCA 495">whether grants by the government to church-run missions were "acts" under the racial discrimination act 1975</citphrase>
<citphrase id="cp2.5">cited from="[2005] FCA 495">whether wages paid less than awards was unlawful racial discrimination</citphrase>
<citphrase id="cp6.0">cited from="[1999] FCA 105">discrimination law</citphrase>
<citphrase id="cp6.1">cited from="[1999] FCA 105">racial discrimination in employment</citphrase>
<citphrase id="cp6.2">cited from="[1999] FCA 105">judicial review</citphrase>
<citphrase id="cp6.3">cited from="[1999] FCA 105">non-citizen granted employment in defence establishment subject to obtaining security clearance</citphrase>
<citphrase id="cp6.4">cited from="[1999] FCA 105">employee citizen of country where background checking impossible</citphrase>
<citphrase id="cp6.5">cited from="[1999] FCA 105">whether dismissal because clearance could not be obtained "by reason of" national original</citphrase>
<citphrase id="cp6.6">cited from="[1999] FCA 105">whether procedures for obtaining security clearance discriminatory</citphrase>
<citphrase id="cp6.7">cited from="[1999] FCA 105">direct or indirect discrimination</citphrase>
<citphrase id="cp6.8">cited from="[1999] FCA 105">whether discrimination "based on" or "by reason of" national origin</citphrase>
<citphrase id="cp6.9">cited from="[1999] FCA 105">reasonableness of requirement. words  phrases</citphrase>
<citphrase id="cp6.10">cited from="[1999] FCA 105">"national origin"</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">RACIAL DISCRIMINATION ACT 1975 </title>
<title id="l1">RACIAL DISCRIMINATION ACT 1975 - SECT 9 Racial discrimination to be unlawful</title>
<title id="l2">RACIAL DISCRIMINATION ACT 1975 - SECT 10 Rights to equality before the law</title>
<title id="l3">RACIAL DISCRIMINATION ACT 1975 - SECT 45 Protection from civil actions</title>
<title id="l4">SEX DISCRIMINATION ACT 1984 </title>
<title id="l5">SEX DISCRIMINATION ACT 1984 - SECT 94 Victimisation</title>
<title id="l6">SEX DISCRIMINATION ACT 1984 - SECT 105 Liability of persons involved in unlawful acts</title>
<title id="l7">SEX DISCRIMINATION ACT 1984 - SECT 111 Protection from civil actions</title>
<title id="l8">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2003] HCA 5">boral besser masonry limited (now boral masonry ltd) v australian competition and consumer commission  trade practices</citphrase>
<citphrase id="cp0.1">cited from="[2003] HCA 5">restrictive trade practices</citphrase>
<citphrase id="cp0.2">cited from="[2003] HCA 5">misuse of market power</citphrase>
<citphrase id="cp0.3">cited from="[2003] HCA 5">predatory pricing</citphrase>
<citphrase id="cp0.4">cited from="[2003] HCA 5">market definition</citphrase>
<citphrase id="cp0.5">cited from="[2003] HCA 5">concrete masonry products market</citphrase>
<citphrase id="cp0.6">cited from="[2003] HCA 5">close substitutability</citphrase>
<citphrase id="cp0.7">cited from="[2003] HCA 5">whether appellant had substantial degree of market power</citphrase>
<citphrase id="cp0.8">cited from="[2003] HCA 5">recoupment of losses</citphrase>
<citphrase id="cp0.9">cited from="[2003] HCA 5">analysis of market structure</citphrase>
<citphrase id="cp0.10">cited from="[2003] HCA 5">market share</citphrase>
<citphrase id="cp0.11">cited from="[2003] HCA 5">barriers to entry</citphrase>
<citphrase id="cp0.12">cited from="[2003] HCA 5">whether barriers to entry created by practices and policies of incumbent firms</citphrase>
<citphrase id="cp0.13">cited from="[2003] HCA 5">pricing behaviour</citphrase>
<citphrase id="cp0.14">cited from="[2003] HCA 5">increase in supply capacity</citphrase>
<citphrase id="cp0.15">cited from="[2003] HCA 5">whether taking advantage of a substantial degree of market power for a proscribed purpose</citphrase>
<citphrase id="cp0.16">cited from="[2003] HCA 5">legislative purpose of trade practices act 1974 (cth)</citphrase>
<citphrase id="cp0.17">cited from="[2003] HCA 5">relevance of market economic conditions</citphrase>
<citphrase id="cp0.18">cited from="[2003] HCA 5">relevance of purpose of damaging a competitor</citphrase>
<citphrase id="cp0.19">cited from="[2003] HCA 5">trade practices act 1974 (cth), s 46(1) , (3).</citphrase>
<citphrase id="cp2.0">citing from="[2011] FCA 344">evidence</citphrase>
<citphrase id="cp2.1">citing from="[2011] FCA 344">expert evidence</citphrase>
<citphrase id="cp2.2">citing from="[2011] FCA 344">whether specialised knowledge or expertise established to admit evidence under s 79 of the evidence act 1995 (cth)  damages</citphrase>
<citphrase id="cp2.3">citing from="[2011] FCA 344">infringements of trademarks and copyright</citphrase>
<citphrase id="cp2.4">citing from="[2011] FCA 344">adequacy of compensatory damages, damages to reputation and additional damages pursuant to s 115 of the copyright act 1968 (cth)  costs</citphrase>
<citphrase id="cp2.5">citing from="[2011] FCA 344">requirements of o 23 of the federal court rules 1979 (cth) and calderbank v calderbank [1975] 3 all er 333</citphrase>
<citphrase id="cp2.6">citing from="[2011] FCA 344">whether offer of compromise and rejection letter considered by court in the exercise of its general costs discretion</citphrase>
<citphrase id="cp3.0">citing from="[2010] FMCA 799">copyright</citphrase>
<citphrase id="cp3.1">citing from="[2010] FMCA 799">applicant's garment and design clearly unlawfully copied and reproduced</citphrase>
<citphrase id="cp3.2">citing from="[2010] FMCA 799">whether applicant had created copyright in the design</citphrase>
<citphrase id="cp3.3">citing from="[2010] FMCA 799">whether respondents caused or effected the breach of copyright</citphrase>
<citphrase id="cp3.4">citing from="[2010] FMCA 799">consideration of damages, damage to reputation and pursuant s.115 of the copyright act 1968 .  copyright act 1968 , ss.115 , 115 (4)  interlego ag v croner trading pty ltd (1992) 39 fcr 348  adidas-salomon at v turner [2003] fca 421 ; (2003) 58 ipr 66</citphrase>
<citphrase id="cp4.0">citing from="[2010] FMCA 709">copyright</citphrase>
<citphrase id="cp4.1">citing from="[2010] FMCA 709">infringement</citphrase>
<citphrase id="cp4.2">citing from="[2010] FMCA 709">default judgment</citphrase>
<citphrase id="cp4.3">citing from="[2010] FMCA 709">assessment of damages.</citphrase>
<citphrase id="cp5.0">citing from="[2010] FMCA 584">copyright</citphrase>
<citphrase id="cp5.1">citing from="[2010] FMCA 584">alleged infringements of trade marks and copyright</citphrase>
<citphrase id="cp5.2">citing from="[2010] FMCA 584">items sold with logos the subject of trade marks and copyright</citphrase>
<citphrase id="cp5.3">citing from="[2010] FMCA 584">alleged breach of fair trading act 1987 (nsw)</citphrase>
<citphrase id="cp5.4">citing from="[2010] FMCA 584">passing off</citphrase>
<citphrase id="cp5.5">citing from="[2010] FMCA 584">consideration of remedies.</citphrase>
<citphrase id="cp6.0">citing from="[2010] FMCA 433">copyright</citphrase>
<citphrase id="cp6.1">citing from="[2010] FMCA 433">breaches of copyright</citphrase>
<citphrase id="cp6.2">citing from="[2010] FMCA 433">counterfeit garments</citphrase>
<citphrase id="cp6.3">citing from="[2010] FMCA 433">damages</citphrase>
<citphrase id="cp6.4">citing from="[2010] FMCA 433">damages for loss of reputation</citphrase>
<citphrase id="cp6.5">citing from="[2010] FMCA 433">additional damages</citphrase>
<citphrase id="cp6.6">citing from="[2010] FMCA 433">proceeding undefended</citphrase>
<citphrase id="cp6.7">citing from="[2010] FMCA 433">conduct of respondents</citphrase>
<citphrase id="cp6.8">citing from="[2010] FMCA 433">award for damages made for $61,000</citphrase>
<citphrase id="cp6.9">citing from="[2010] FMCA 433">injunctions and declarations made</citphrase>
<citphrase id="cp6.10">citing from="[2010] FMCA 433">costs.</citphrase>
<citphrase id="cp7.0">citing from="[2010] FCAFC 55">intellectual property</citphrase>
<citphrase id="cp7.1">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp7.2">citing from="[2010] FCAFC 55">validity of</citphrase>
<citphrase id="cp7.3">citing from="[2010] FCAFC 55">whether designs reasonably clear and succinct</citphrase>
<citphrase id="cp7.4">citing from="[2010] FCAFC 55">whether designs new and distinctive when compared with prior art base. intellectual property</citphrase>
<citphrase id="cp7.5">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp7.6">citing from="[2010] FCAFC 55">infringement of</citphrase>
<citphrase id="cp7.7">citing from="[2010] FCAFC 55">whether alleged infringing products embodied designs that were substantially similar in overall impression to registered designs. intellectual property</citphrase>
<citphrase id="cp7.8">citing from="[2010] FCAFC 55">registered designs</citphrase>
<citphrase id="cp7.9">citing from="[2010] FCAFC 55">infringement of</citphrase>
<citphrase id="cp7.10">citing from="[2010] FCAFC 55">joint liability for</citphrase>
<citphrase id="cp7.11">citing from="[2010] FCAFC 55">personal liability of director of infringing company. trade practices</citphrase>
<citphrase id="cp7.12">citing from="[2010] FCAFC 55">prescribed consumer product safety standard</citphrase>
<citphrase id="cp7.13">citing from="[2010] FCAFC 55">goods supplied in trade or commerce</citphrase>
<citphrase id="cp7.14">citing from="[2010] FCAFC 55">whether goods complied with standard</citphrase>
<citphrase id="cp7.15">citing from="[2010] FCAFC 55">sufficiency of proof. damages</citphrase>
<citphrase id="cp7.16">citing from="[2010] FCAFC 55">conduct amounting to infringement of design and contravention of trade practices legislation</citphrase>
<citphrase id="cp7.17">citing from="[2010] FCAFC 55">whether damages available under both heads</citphrase>
<citphrase id="cp7.18">citing from="[2010] FCAFC 55">where damages not awarded under trade practices legislation</citphrase>
<citphrase id="cp7.19">citing from="[2010] FCAFC 55">costs consequences. trade practices</citphrase>
<citphrase id="cp7.20">citing from="[2010] FCAFC 55">contraventions by companies of legislative norms</citphrase>
<citphrase id="cp7.21">citing from="[2010] FCAFC 55">directors</citphrase>
<citphrase id="cp7.22">citing from="[2010] FCAFC 55">accessorial liability</citphrase>
<citphrase id="cp7.23">citing from="[2010] FCAFC 55">whether knowingly involved. practice and procedure</citphrase>
<citphrase id="cp7.24">citing from="[2010] FCAFC 55">costs</citphrase>
<citphrase id="cp7.25">citing from="[2010] FCAFC 55">whether appropriate to deny successful respondent his costs with respect to period before he swore to his non-involvement in conduct by company of which he had been director</citphrase>
<citphrase id="cp7.26">citing from="[2010] FCAFC 55">offer of compromise</citphrase>
<citphrase id="cp7.27">citing from="[2010] FCAFC 55">whether party entitled to costs incurred after service of offer of compromise on an indemnity basis.</citphrase>
<citphrase id="cp8.0">citing from="[2009] FMCA 1317">copyright</citphrase>
<citphrase id="cp8.1">citing from="[2009] FMCA 1317">breaches of copyright</citphrase>
<citphrase id="cp8.2">citing from="[2009] FMCA 1317">counterfeit garments</citphrase>
<citphrase id="cp8.3">citing from="[2009] FMCA 1317">damages</citphrase>
<citphrase id="cp8.4">citing from="[2009] FMCA 1317">damages for loss of reputation</citphrase>
<citphrase id="cp8.5">citing from="[2009] FMCA 1317">additional damages</citphrase>
<citphrase id="cp8.6">citing from="[2009] FMCA 1317">proceeding undefended</citphrase>
<citphrase id="cp8.7">citing from="[2009] FMCA 1317">conduct of respondents</citphrase>
<citphrase id="cp8.8">citing from="[2009] FMCA 1317">award for damages made for $90,727</citphrase>
<citphrase id="cp8.9">citing from="[2009] FMCA 1317">injunctions and declarations made</citphrase>
<citphrase id="cp8.10">citing from="[2009] FMCA 1317">costs.</citphrase>
<citphrase id="cp10.0">citing from="[2008] FCA 1941">intellectual property</citphrase>
<citphrase id="cp10.1">citing from="[2008] FCA 1941">designs</citphrase>
<citphrase id="cp10.2">citing from="[2008] FCA 1941">whether designs act 2003 (cth) applies to extraterritorial conduct</citphrase>
<citphrase id="cp10.3">citing from="[2008] FCA 1941">whether alleged infringer's subsequent registration of designs in respect of her own products is relevant to the questions of infringement or validity of the allegedly infringed design</citphrase>
<citphrase id="cp10.4">citing from="[2008] FCA 1941">whether a design that combines various features, each of which can be found in the prior art base when considered individually but not collectively in any one particular piece of prior art, is capable of being distinctive</citphrase>
<citphrase id="cp10.5">citing from="[2008] FCA 1941">whether infringement analysis is undertaken by comparing allegedly infringing product with registered design or with a product embodying the registered design</citphrase>
<citphrase id="cp10.6">citing from="[2008] FCA 1941">authorship</citphrase>
<citphrase id="cp10.7">citing from="[2008] FCA 1941">who is an author of a design</citphrase>
<citphrase id="cp10.8">citing from="[2008] FCA 1941">whether an independent contractor can be a co-author of a design</citphrase>
<citphrase id="cp10.9">citing from="[2008] FCA 1941">design register</citphrase>
<citphrase id="cp10.10">citing from="[2008] FCA 1941">what constitutes the design register</citphrase>
<citphrase id="cp10.11">citing from="[2008] FCA 1941">whether a design will be invalid for lack of clarity if the relevant features appear from the registered representations without necessity for unreasonably prolonged or complicated series of deductions</citphrase>
<citphrase id="cp10.12">citing from="[2008] FCA 1941">substantial similarity as judged objectively by hypothetical "informed user"</citphrase>
<citphrase id="cp10.13">citing from="[2008] FCA 1941">whether "informed user" is more informed than an average user but less informed than a expert</citphrase>
<citphrase id="cp10.14">citing from="[2008] FCA 1941">whether party has duty to check the design register where the product embodying the design carries a registration notice and the substantial similarity of the allegedly infringing, later-designed product permits the inference that the party had access to the product embodying the registered design and did or should have seen the registration notice</citphrase>
<citphrase id="cp10.15">citing from="[2008] FCA 1941">damages</citphrase>
<citphrase id="cp10.16">citing from="[2008] FCA 1941">lost sales</citphrase>
<citphrase id="cp10.17">citing from="[2008] FCA 1941">whether infringer's sales may be claimed by design owner on a one-to-one basis in calculating damages   evidence</citphrase>
<citphrase id="cp10.18">citing from="[2008] FCA 1941">judicial notice</citphrase>
<citphrase id="cp10.19">citing from="[2008] FCA 1941">whether court may take judicial notice of design representations displayed on ip australia website</citphrase>
<citphrase id="cp10.20">citing from="[2008] FCA 1941">whether circulars published by the administrator of vehicle standards constitute legislative instruments of which the court may take judicial notice</citphrase>
<citphrase id="cp10.21">citing from="[2008] FCA 1941">whether substantial similarity of two products permits an inference that designer of later created product had reference to earlier-created work</citphrase>
<citphrase id="cp10.22">citing from="[2008] FCA 1941">whether court may take judicial notice of matter requiring basic computer literacy   trade practices</citphrase>
<citphrase id="cp10.23">citing from="[2008] FCA 1941">accessorial liability</citphrase>
<citphrase id="cp10.24">citing from="[2008] FCA 1941">actual knowledge</citphrase>
<citphrase id="cp10.25">citing from="[2008] FCA 1941">whether representation of compliance with law may be misleading where it is based upon a commonly shared mistake of law</citphrase>
<citphrase id="cp10.26">citing from="[2008] FCA 1941">damages</citphrase>
<citphrase id="cp10.27">citing from="[2008] FCA 1941">lost sales</citphrase>
<citphrase id="cp10.28">citing from="[2008] FCA 1941">whether sales lost by virtue of defendant's misleading conduct greater than sales lost by virtue of defendant's infringement</citphrase>
<citphrase id="cp11.0">citing from="[2008] FCA 1760">intellectual property</citphrase>
<citphrase id="cp11.1">citing from="[2008] FCA 1760">trade marks</citphrase>
<citphrase id="cp11.2">citing from="[2008] FCA 1760">alleged infringement of s120 trade marks act 1995 (cth) by software enabled internet postal service</citphrase>
<citphrase id="cp11.3">citing from="[2008] FCA 1760">whether mark substantially identical or deceptively similar</citphrase>
<citphrase id="cp11.4">citing from="[2008] FCA 1760">whether goods or services in respect of which mark registered</citphrase>
<citphrase id="cp11.5">citing from="[2008] FCA 1760">nature of first respondent's business</citphrase>
<citphrase id="cp11.6">citing from="[2008] FCA 1760">nature of software</citphrase>
<citphrase id="cp11.7">citing from="[2008] FCA 1760">whether software incidental to service</citphrase>
<citphrase id="cp11.8">citing from="[2008] FCA 1760">effect of undertaking given during trial intellectual property</citphrase>
<citphrase id="cp11.9">citing from="[2008] FCA 1760">trade marks</citphrase>
<citphrase id="cp11.10">citing from="[2008] FCA 1760">assessment of damages</citphrase>
<citphrase id="cp11.11">citing from="[2008] FCA 1760">whether damages at large applicable to trade mark infringement</citphrase>
<citphrase id="cp11.12">citing from="[2008] FCA 1760">whether wrongful conduct enough</citphrase>
<citphrase id="cp11.13">citing from="[2008] FCA 1760">whether applicant established damage intellectual property</citphrase>
<citphrase id="cp11.14">citing from="[2008] FCA 1760">trade practices</citphrase>
<citphrase id="cp11.15">citing from="[2008] FCA 1760">whether breach of ss 52 and 53 trade practices act 1974 (cth) (tpa)</citphrase>
<citphrase id="cp11.16">citing from="[2008] FCA 1760">application of established principles</citphrase>
<citphrase id="cp11.17">citing from="[2008] FCA 1760">whether confusion transient and ephemeral</citphrase>
<citphrase id="cp11.18">citing from="[2008] FCA 1760">whether representation of sponsorship or approval intellectual property</citphrase>
<citphrase id="cp11.19">citing from="[2008] FCA 1760">tort</citphrase>
<citphrase id="cp11.20">citing from="[2008] FCA 1760">wrongful passing off</citphrase>
<citphrase id="cp11.21">citing from="[2008] FCA 1760">whether applicant established elements pursuant to recognised principles</citphrase>
<citphrase id="cp11.22">citing from="[2008] FCA 1760">whether sufficient reputation in mark</citphrase>
<citphrase id="cp11.23">citing from="[2008] FCA 1760">likelihood of injury to business held: application allowed in part</citphrase>
<citphrase id="cp11.24">citing from="[2008] FCA 1760">trade mark infringement established prior to undertaking</citphrase>
<citphrase id="cp11.25">citing from="[2008] FCA 1760">passing off and tpa claim dismissed</citphrase>
<citphrase id="cp11.26">citing from="[2008] FCA 1760">no damages payable</citphrase>
<citphrase id="cp11.27">citing from="[2008] FCA 1760">applicant entitled to injunctive relief in accordance with undertaking</citphrase>
<citphrase id="cp13.0">citing from="[2008] FCA 1589">registered design</citphrase>
<citphrase id="cp13.1">citing from="[2008] FCA 1589">the registered owner of a design registered under the designs act 2003 (cth) of a ladies' garment (applicants' design)</citphrase>
<citphrase id="cp13.2">citing from="[2008] FCA 1589">respondent allegedly designed ladies' garment in australia and had them made in china for importation and wholesale in australia</citphrase>
<citphrase id="cp13.3">citing from="[2008] FCA 1589">whether the respondent infringed applicants' design</citphrase>
<citphrase id="cp13.4">citing from="[2008] FCA 1589">meaning of "the informed user"</citphrase>
<citphrase id="cp13.5">citing from="[2008] FCA 1589">relevance of colour in claimed design rights</citphrase>
<citphrase id="cp13.6">citing from="[2008] FCA 1589">substantial similarity in overall impression between respondent's garments and the applicants' design</citphrase>
<citphrase id="cp13.7">citing from="[2008] FCA 1589">claim of design infringement upheld  validity of registered design</citphrase>
<citphrase id="cp13.8">citing from="[2008] FCA 1589">whether registration of applicants' design valid as being new and distinctive when compared with the prior art base before priority date</citphrase>
<citphrase id="cp13.9">citing from="[2008] FCA 1589">informed user would not consider applicants' design to be substantially similar in overall impression to designs published prior to registration priority date</citphrase>
<citphrase id="cp13.10">citing from="[2008] FCA 1589">applicants' design valid damages</citphrase>
<citphrase id="cp13.11">citing from="[2008] FCA 1589">whether damages for actual sales loss or diminution in value of design should be awarded</citphrase>
<citphrase id="cp13.12">citing from="[2008] FCA 1589">whether defence under s 75(2) is available</citphrase>
<citphrase id="cp13.13">citing from="[2008] FCA 1589">whether additional damages under s 75(3) should be awarded</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCA 344" id="cs0">In Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 ; (2008) 76 IPR 763 , Besanko J said at [17]:

 ... First, there is no need ... to consider if an award of additional damages can be made under s 115(4) if no damages are awarded under s 115(2) because I have awarded ... damages under s 115(2): ( Polygram Pty Ltd, Island Records Ltd  A  M Records Inc v Golden Editions Pty Ltd, Hoghton Hughes (No 2) (1997) 76 FCR 565 at 576; 148 ALR 4 at 13---14; 38 IPR 451 at 459---61 ( Polygram ) per Lockhart J; MJA Scientifics [ International Pty Ltd v SC Johnson  Son Pty Ltd (1998) 43 IPR 275] at 283---284 per Sundberg J. Second, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 ; [2003] FCA 1067 at [31] - [34] per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Third, the matters in subs (4)(b)(i)---(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourth, ... there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the [Copyright] Act, whereas ... the latter matter is a matter to be taken into account in determining the appropriate order as to costs. ... Fifth, an award under s 115(4) of the [Copyright] Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey at FCR 113--- 114; ALR 238 ; IPR 156.

  Nonetheless, each case turns on its own facts and one must approach with caution any suggestion that very substantial awards of damages are appropriate in every case.

 [83]. The award made by Jessup J in Review Australia Pty Ltd v Innovative Lifestyle Investments Proprietary Limited [2008] FCA 74 ; (2008) 75 IPR 289 of $10,000 reflected different and, arguably, more serious circumstances.

 [84]. Counsel for the [G-Star Companies] laid particular stress upon the judgment of O'Dwyer FM in Urban Culture in which his Honour made an award under this section of $50,000.</sentence>
<sentence from="[2010] FMCA 799" id="cs1">In Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 ; (2008) 79 IPR 236 and Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 , Kenny and Jessup JJ awarded damages for damage to reputation because in each case, they found that there was some probable diminution in the commercial value of the design in respect to future use and would have an adverse effect upon the applicant's reputation in exclusivity of design. Kenny J awarded damages of $35,000 where the respondent had sold 730 units and Jessup J awarded damages in the sum of $7,500 in respect to the sale of approximately 157 units. </sentence>
<sentence from="[2010] FMCA 709" id="cs2">In Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd and Anor (2008) 166 FCR 358 ; [2008] FCA 74 , Jessup J awarded $7,500 for damage to reputation under the Designs Act 2003 . His Honour said at [30] and [31]: [30] I think there is sense in the applicant's position in this regard, particularly with respect to so much of the respondents' infringement as concerns offering to sell, and selling, their own dress. I accept the applicant's evidence that it put considerable value by the perceived originality of its garments. However, her Honour addressed the paucity of evidence of the impact of the infringing products on the reputation of the plaintiff, and the difficulties with assessing the damage to reputation in the following terms: [33] In the present case, I find that it was reasonably foreseeable that infringement of the applicant's copyright would cause a loss of reputation to the applicant in terms of brand-name recognition. However, the applicant adduced no evidence of the damage it allegedly suffered to its reputation by reason of the infringement of its copyright. In previous cases where damage to reputation has been quantified, evidence was usually led to establish (a) the importance of singularity, distinctiveness, quality or some other commercially valuable aspect of reputation to the victim and (b) how, and to what extent, the infringing product or conduct damaged that aspect of the victim's reputation: see Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293 ; [2006] FCA 1431 at [55] ; New Cover[ [6] ] at [44]---[46] and Innovative[ [7] ] at [29]---[31]. [34] What then is the commercially valuable aspect of the applicant's reputation, and how, and to what extent, was this commercially valuable aspect damaged by the conduct of the respondent? At its highest, it was submitted by the applicant that the "iconic" and "exclusive" nature of the Elwood brand was "cheapened" by the production of the infringing products of the respondent. Sixthly, the applicants submitted that the respondents, despite being put on notice that they were infringing the applicants' copyright, continued to sell counterfeit copies of the applicants' products: Fahd affidavit at [8]. I accept that evidence and accept that it warrants an award of additional damages: see Review Australia Pty Ltd v Innovative Style Investments Pty Ltd (2008) 166 FCR 358 ; [2008] FCA 74. </sentence>
<sentence from="[2010] FMCA 584" id="cs3">The award made by Jessup J in Review Australia Pty Ltd v Innovative Lifestyle Investments Proprietary Limited [2008] FCA 74 ; (2008) 75 IPR 289 of $10,000 reflected different and, arguably, more serious circumstances. </sentence>
<sentence from="[2010] FMCA 433" id="cs4">O'Dwyer FM in Urban Culture pointed out that smaller amounts of damages have been awarded in the range of $7500 to $10,000 in Review Australia Pty Ltd v Innovative Lifestyle Investments Pty ltd and Anor [2008] FCA 74 ; Crimson SRL  Anor v Claudia Shoes Pty Ltd  Ors (No.7) (2008) ASAL.  The applicants sought an award of additional damages in the sum of $100,000. In their outline of submissions the applicants have referred to cases where additional damages have been awarded in the range of $3million to $50,000. I find an award of $50,000 will serve as a specific deterrent on the respondent as well as a general deterrent to those in their industry who may be tempted. (See Amalgamated Mining Service Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 , Bailey v Namol [1994] FCA 1401 ; (1994) 30 IPR 147 , Milpurrurru and Others v Indofurn Pty Ltd and Others (1994) 30 IPR 209 , Microsoft v Goodview (2000) 49 IPR 578 , Microsoft Corporation and Others v PC Club Australia Pty Ltd and Others [2005] FCA 1522 ; (2005) 67 IPR 262 , Fraserside Holdings  Anor v Venus Adult Shops  Ors [2005] FMCA 997 , Foxtel Management Pty Ltd  Anor v Mod Shop Pty Ltd  Ors [2007] FCA 463 ; (2007) 72 IPR 1 , Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in Liquidation)  Ors [2007] FCAFC 40 ; (2007) 71 IPR 437 , Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 , Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd and Anor [2008] FCA 74 , Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2009] FCA 633) and G-Star Raw Denim KFT  Anor v Urban Culture Pty Ltd  Anor [2009] FMCA 1317).  As the applicants pointed out in their outline of submissions, there is no exact formula to determine the amount of damages for loss of reputation. In previous cases the number of counterfeit garments offered for sale by respondents have ranged from 20 to 28,139 garments: See Crimson SRL  Anor v Claudia Shoes Pty Ltd  Ors (No.7) (2008) ASAL; Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2009] FCA 633. Awards of damages for loss of reputation have ranged from $7,500 to $35,000: see Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd and Anor [2008] FCA 74 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 ; G-Star Raw Denim KFT  Anor v Urban Culture Pty Ltd  Anor [2009] FMCA 1317. </sentence>
<sentence from="[2010] FCAFC 55" id="cs5">357 In that part of the primary Judge's reasons which dealt with the operation of s 75(2) of the Designs Act , her Honour made it clear that her judgment against Ren and Olsen did not involve a finding that either of them "made" the articles to which the infringing designs had been applied. That was because the articles had been made outside Australia, and, in her Honour's view, s 71(1) of the Designs Act did not have extraterritorial operation. Her Honour held, however, that Ren and Olsen were secondary infringers within the meaning of s 75(2)(b) , in that they had imported the articles, and offered them for sale in Australia. She added that she "would consider" Messrs Keller and Armstrong to be secondary infringers as well, on a similar basis to that upon which Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 was decided, namely (in the words of her Honour), that "importing or selling, as the case may be, should be understood to also include directing, causing or procuring an infringing item to be imported or sold". </sentence>
<sentence from="[2009] FMCA 1317" id="cs6">In respect of the other component in s.115(2) of the Act for compensation for loss of reputation, I looked at similar cases where similar items and numbers were involved. In Review Australia Pty Ltd v The New Cover Group Pty Ltd [2008] FCA 1589 the court ordered $35,000 based upon 700 infringing garments being sold. In this case, I am satisfied that the applicants' products have a well-defined and strong position in the marketplace and that they are at risk of, and on balance, have suffered a loss of reputation by the sale of these counterfeit garments and that the figure of $35,000 is an appropriate award. In determining that amount, I am conscious of lesser amounts being awarded for loss of reputation in the range of $7500 to $10,000, but this case, in my view, is distinguished from them by the following factors, which cumulatively heighten the real prospect of damage to reputation to a degree not so prevalent in the other cases: the second applicant loses sales of the G-Star products as consumers refuse to pay the higher prices for the G-Star products when similar looking counterfeit "G-Star" products are available in the marketplace for cheaper prices; the second applicant loses customers as they no longer purchase the G-Star products as they are no longer considered "exclusive" as cheaper copy product is available in the marketplace; the second applicant's retail customers no longer wish to purchase the G-Star products as counterfeit "G-Star" products are being sold in retail stores within close proximity to their store and at cheaper prices; and the applicants ensure strict quality control for any product sold under or by reference to the "G-Star" marks and the Urban Culture products are not subject to these controls.
(See Crimson SRL  ANOR v Claudia Shoes Pty Ltd and Ors (No.7) (2008) ASAL, Review Australia Pty Ltd v New Cover Group Ltd [2008] FCA 1589 , Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd and Anor [2008] FCA 74 , Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2009] FCA 633)
 Additional Damages
 </sentence>
<sentence from="[2009] FCA 633" id="cs7">The observations made by Besanko J in Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 ; (2008) 76 IPR 763 at [17] should be repeated:
First, there is no need ... to consider if an award of additional damages can be made under s 115(4) if no damages are awarded under s 115(2) because I have awarded ... damages under s 115(2) ( Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 at 459-461 per Lockhart J; MJA Scientifics [International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 275] at 283-284 per Sundberg J). Second, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith [2003] FCA 1067 ; (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Third, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourth, ... there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the [Copyright] Act, whereas ... the latter matter is a matter to be taken into account in determining the appropriate order as to costs. ... Fifth, an award under s 115(4) of the [Copyright] Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114.  How the Court should treat this lack of evidence may be said not to be settled: compare Axe Australasia Pty Ltd v Australume Pty Ltd [2006] FCA 668 ; (2006) 69 IPR 45 at [35] (acknowledging that relevant evidence could have been but was not provided by the Applicant, but nevertheless applying a 35% discount as a best guess); Norm Engineering [2007] FCA 761 ; 162 FCR 1 , [292]-[296] (applying a 50% discount even where there was evidence that both parties operated in a similar market and that the Respondent was actively attempting to divert sales from the Applicant as market leader); and Innovative [2008] FCA 74 ; 166 FCR 358 at [28] (effectively applying a discount of 100% by refusing to award any lost profits damages on the grounds that to do so would require excessive speculation).  It is evidence of the other integers that is missing. There is no evidence about which entity was the market leader in t-shirts and no basis, whether from expert evidence or otherwise, to determine an appropriate discount factor, particularly given that, unlike the competitors in Norm Engineering [2007] FCA 761 ; 162 FCR 1 , the Applicant and the Respondent were selling to different markets at vastly different prices (approximately $50 versus $15). Indeed, even where the parties were selling to similar markets at similar prices in Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 (fact found by Jessup J at [23]), the Court found that the Applicant had failed to put forward sufficient evidence for it to draw an inference as to whether some or all of the sales made by the Respondent could be properly characterised as sales lost by the Applicant: see Innovative [2008] FCA 74 ; 166 FCR 358 , [25]-[26].  In the present case, I find that it was reasonably foreseeable that infringement of the Applicant's copyright would cause a loss of reputation to the Applicant in terms of brand-name recognition. However, the Applicant adduced no evidence of the damage it allegedly suffered to its reputation by reason of the infringement of its copyright. In previous cases where damage to reputation has been quantified, evidence was usually led to establish (a) the importance of singularity, distinctiveness, quality or some other commercially valuable aspect of reputation to the victim and (b) how, and to what extent, the infringing product or conduct damaged that aspect of the victim's reputation: see Paramount Pictures Corporation v Hasluck [2006] FCA 1431 ; (2006) 70 IPR 293 at [55] ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 ; (2008) 79 IPR 236 , [44]-[46] and Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 , [29]-[31]. </sentence>
<sentence from="[2008] FCA 1941" id="cs8">How then does one assess the overall impression of a design in infringement proceedings? As noted earlier, until recently there has been little Australian judicial consideration of the 2003 Designs Act. The principal cases to date include Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 ; Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 ; Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589 and World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd [2007] FCA 114 ; (2007) 71 IPR 307.  In Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 ; (2008) 166 FCR 358 ( Innovative ), Jessup J concluded that the word make in s 71(1) also includes those who direct, cause, or procure an infringing item to be made as well as those who make such an item themselves: Innovative at [21]. At first glance, therefore, it would seem that Ren and Olsen would be considered primary infringers. Although they did not make the products themselves, they directed, caused, or procured the Condor lights to be made by issuing purchase orders to their Chinese suppliers based on samples, designs, or other specifications. Elecspess and AAA, having only sold the products, would be secondary infringers. </sentence>
<sentence from="[2008] FCA 1760" id="cs9">121 The applicant conceded in this case that it had not lead evidence establishing any actual loss of sales revenue arising from the conduct of the first respondent, but instead claimed damages "at large" as awarded in Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Lt d [2008] FCA 74. Damages sought by the applicant were in the sum of $50,000, representing:

• damages on the basis of notional royalty;

• diminution in the value of the applicant's trade mark; and

• loss of reputation. 125 In claiming that damages "at large" should be awarded the applicant relied in part on the decision of Jessup J in Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74. However:

• I consider that Review Australia [2008] FCA 74 is distinguishable from this case. In Review Australia Jessup J accepted that the market presence of the respondents' product did bring about some minor dilution of the applicant's reputation for originality (at [30]). In my view there is some evidence of minor and short-lived confusion of a small number of consumers, but no evidence that there has been any dilution of the applicant's reputation in any respect by the market presence of the first respondent. 125 In claiming that damages "at large" should be awarded the applicant relied in part on the decision of Jessup J in Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74. However:

• I consider that Review Australia [2008] FCA 74 is distinguishable from this case. In Review Australia Jessup J accepted that the market presence of the respondents' product did bring about some minor dilution of the applicant's reputation for originality (at [30]).</sentence>
<sentence from="[2008] FCA 1698" id="cs10">19 In the circumstances, I consider both that the allegations in the interlocutory process are made out and that it is appropriate for there to be relief of the kind, although not completely of the kind, sought in the interlocutory process. In addition to the Orders referred to above, the Defendant also sought, in the alternative, a declaration of the Defendant's entitlement to be indemnified by the Respondents. In the circumstances, I do not propose to grant the declaration sought by the Defendant. As Jessup J said in Review Australia Pty Ltd v Lifestyle Investments Pty Ltd [2008] FCA 74 at [57] :

 I can see no point in making a declaration. The applicant has been successful in its action for damages, and the basis of that success appears sufficiently from these reasons. In my view, a declaration would not add further to the appropriate judicial resolution of the dispute which has brought the parties to court.</sentence>
<sentence from="[2008] FCA 1589" id="cs11">44 Review sought damages on an alternative basis, which is made out in the following way. I accept that the infringement resulted in a probable diminution in the value of the design as a chose in action because the infringement resulted in some probable diminution in the commercial value of the design in respect of its future use. Further, the reproduction of the design by New Cover/Maco under the Spicy Sugar label and the wholesale distribution of garments embodying the design to New Cover/Maco's various retail customers is likely to have had some adverse effect on the reputation of the design and its "exclusivity" (or "freshness" as Gowans J said in Prior v Lansdowne at 70; applied by von Doussa J in Milpurrurru v Indofurn Pty Ltd (1994) 30 IPR 209 at 243). See also Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 (" Innovative Lifestyle ") at [31] per Jessup J. That is, on the evidence before the Court (to which I am about to refer), the reproduction of the Review Design under the cheaper Spicy Sugar label had the distinct potential to diminish customer interest in the Review Design and, in consequence, consumer demand for garments embodying the Review Design.</sentence>
</citances>
<legistitles>
<title id="l0">COPYRIGHT ACT 1968 </title>
<title id="l1">COPYRIGHT ACT 1968 - SECT 75 Copyright protection where corresponding design registered</title>
<title id="l2">COPYRIGHT ACT 1968 - SECT 115 Actions for infringement</title>
<title id="l3">CORPORATIONS ACT 2001 </title>
<title id="l4">DESIGNS ACT 2003 </title>
<title id="l5">DESIGNS ACT 2003 - SECT 21 Person may file a design application</title>
<title id="l6">DESIGNS ACT 2003 - SECT 35 Request for registration or publication</title>
<title id="l7">DESIGNS ACT 2003 - SECT 46 Term of registration</title>
<title id="l8">DESIGNS ACT 2003 - SECT 67 Certificate of examination where registration valid</title>
<title id="l9">DESIGNS ACT 2003 - SECT 71 Infringement of design</title>
<title id="l10">DESIGNS ACT 2003 - SECT 75 Remedies for infringement</title>
<title id="l11">DESIGNS ACT 2003 - SECT 132 False representation that a design is registered</title>
<title id="l12">FEDERAL COURT RULES </title>
</legistitles>
</case>