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Australia

This tag is associated with 8 posts

Service matter – dismissed from service – claim for superannuation benefits – Since the order speaks that he was removed from service with superannuation benefits as would be due other wise and with out disqualification from future employment – Tribunal – High court rightly held that he is entitled for the same – Apex court confirmed the same = BANK OF BARODA …. APPELLANT Versus S.K. KOOL(D)THROUGH LRS.AND ANR. …. RESPONDENTS = Published in / Cited in / Reported in judis.nic.in/supremecourt/filename=41066

Service matter –  – dismissed from service – claim for superannuation benefits – Since     the order speaks that he was removed from service with superannuation benefits as would be due other wise and with out disqualification from future employment – Tribunal – High court rightly held that he is entitled for the same – Apex court confirmed the same = … Continue reading

COPYRIGHT – Equitable remuneration – Government use of artistic works – Survey plans – Use for State land title registration system – Remuneration for non-government use of artistic works COPYRIGHT – Reproduction – Distinction between reproduction and electronic communication – Treatment of reproduction and communication on the same basis – Whether appropriate in particular circumstances COPYRIGHT – Equitable remuneration – Distinction between compensation for the provision of survey plans and remuneration for use of copyright works – Economic justification for charging for use of copyright works – State economic policies

Copyright Agency Limited v State of New South Wales (includes Corrigendum dated 28 August 2013) [2013] ACopyT 1 (17 July 2013) Last Updated: 29 August 2013 COPYRIGHT TRIBUNAL OF AUSTRALIA Copyright Agency Limited v State of New South Wales [2013] ACopyT 1 Citation: Copyright Agency Limited v State of New South Wales [2013] ACopyT 1 Parties: COPYRIGHT … Continue reading

Hindu Marriage Act – Jurisdiction of Indian court in respect of couples who applied for foreign citizenship =Whether the petition by the wife for judicial separation under Section 10 of the Hindu Marriage Act and custody of the children is not maintainable. ? Since the marriage was taken place at India and since the wife is of Indian Domicile and since the husband failed to prove that he is domicle of Australia and also failed to prove of his giving up of indian Domicle = “the husband has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice”.- “A conjoint reading of Ss. 1 and 2 of the Act would indicate that so far as the second limb of S. 1(2) of the Act is concerned its intra territorial operation of the Act applied to those who reside outside the territories. First limb of sub-section (2) of S. 1 and Cls. (a) and (b) of S.2(1) would make it clear that the Act would apply to Hindus reside in India whether they reside outside the territories or not.”- Hindu marriage Act sec. (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.”; The general principle underlying the sovereignty of States is that laws made by one State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. – whether a nexus with something in India is necessary.= In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.; “It is, thus, clear that a condition of a domicile in India, as contemplated in Section 1(2) of H.M.Act, is necessary ingredient to maintain a petition seeking reliefs under the H.M.Act. In other words, a wife, who is domiciled and residing in India when she presents a petition, seeking reliefs under H.M.Act, her petition would be maintainable in the territories of India and in the Court within the local limits of whose ordinary civil jurisdiction she resides.”- Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.; law permits raising of alternative plea but the facts of the present case does not permit the husband to take this course. = It is specific case of the appellant that he is a Swedish citizen domiciled in Australia and it is the Australian courts which shall have jurisdiction in the matter. In order to succeed, the appellant has to establish that he is a domicile of Australia and, in our opinion, he cannot be allowed to make out a third case that in case it is not proved that he is a domicile of Australia, his earlier domicile of choice, that is Sweden, is revived. ; Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child.; Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin.- when we consider the husband’s claim of being domicile of Australia we find no material to endorse this plea. The residential tenancy agreement is only for 18 months which cannot be termed for a long period. Admittedly, the husband or for that matter, the wife and the children have not acquired the Australian citizenship. In the absence thereof, it is difficult to accept that they intended to reside permanently in Australia. The claim that the husband desired to permanently reside in Australia, in the face of the material available, can only be termed as a dream. It does not establish his intention to reside there permanently. Husband has admitted that his visa was nothing but a “long term permit” and “not a domicile document”. Not only this, there is no whisper at all as to how and in what manner the husband had abandoned the domicile of origin. In the face of it, we find it difficult to accept the case of the husband that he is domiciled in Australia and he shall continue to be the domicile of origin i.e. India. In view of our answer that the husband is a domicile of India, the question that the wife shall follow the domicile of husband is rendered academic. For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs. CIVIL APPEAL NO.487 OF 2007 In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal vs. Sondur Rajini) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40556 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4629 OF 2005 SONDUR GOPAL APPELLANT VERSUS SONDUR RAJINI RESPONDENT With CIVIL APPEAL NO.487 OF 2007 RAJINI SONDUR APPELLANT VERSUS GOPAL SONDUR & ORS. RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. CIVIL APPEAL NO.4629 OF 2005 Appellant-husband, aggrieved by the judgment and … Continue reading

Section 52 opposition: amendment to Notice of Opposition considered and allowed – ss 58, 44 and 60 considered – Applicant’s claim to ownership not displaced – Trade Mark not deceptively similar to Opponent’s trade mark – reputation of Opponent’s trade mark not shown – opposition not established. Costs awarded against the Opponent. = The Applicant has “[s]ince around March 2007…been a rice importer and trader in Australia”. He says that he “created” the Trade Mark in around February 2008 and that in around May that year he “began using [it] in partnership with Liberty Impex [Pty Ltd]”, a company that he and a Mr Mohammed Moten had incorporated on 20 May 2008, “in connection with rice and the supply of rice in Australia”. He says he had a verbal agreement with Mr Moten at the time to license the company to use the Trade Mark and that, “It was always understood by [the company and Mr Moten] that I was the sole owner of the Trade Mark and that neither [the company nor Mr Moten] had any rights in [it] other than those under licence from me”. – Section 60 of the Act is reproduced below: Trade mark similar to trade mark that has acquired a reputation in Australia 60. The registration of a trade mark in respect of particular goods or services may be opposed on the ground that: (a) another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Opposition by Taj Food Sales Pty Ltd to registration of trade mark application 1313229 (30, 35) – GRAND TIGER Label – in the name of Gerson Rangel DELEGATE: Michael Kirov REPRESENTATION: Opponent: Carmen Champion of Counsel, instructed by Matthews Folbigg Lawyers Applicant: Matthew Hall, Legal Practitioner, … Continue reading

Ultimately, on a basis that is not presently relevant, some accommodation was reached between PPCA’s solicitors and the Network Broadcasters’ solicitors, who as I said, are Free TV’s solicitors, as to the documents that would be produced in answer to the summonses. I have no doubt that that involved an element of give and take or compromise and reflects the pragmatic approach that is often very sensible in relation to these sorts of disputes. It may well be that the documents were produced without conceding that they were relevant. On the other hand, the question of relevance would be a sterile inquiry at this stage of the proceeding. 32 If it be the fact that a significant part of the costs for performing the work to which I have referred were incurred in connection with the production of documents that ultimately are shown to have had no relevance to the proceeding, that is a matter that could be taken into account at the end of the day when the reference has been determined. I do not consider that it is appropriate at this stage to make any order for the payment of the costs of complying with the summonses. I consider that at present, the costs of complying with the summonses should prima facie be treated as Free TV’s costs of the proceeding, having regard to the connection between Free TV, on the one hand, and the Network Broadcasters. 33 I consider that the appropriate course is to defer to the occasion when consideration is given to costs generally, either at or after the final hearing, the question of whether, and, if so to what extent, the costs of complying with the summonses should be treated as something other than the costs of Free TV’s participation in the proceeding. On the other hand, as I have already said, the FremantleMedia bodies have no connection with Free TV and should properly be treated as third parties to the proceeding, such that their costs should be ordered on the basis that I have already indicated.

Phonographic Performance Company of Australia Limited under section 154(1) of the Copyright Act 1968 (Cth) [2009] ACopyT 1 (29 October 2009) Last Updated: 2 February 2010 COPYRIGHT TRIBUNAL OF AUSTRALIA Phonographic Performance Company of Australia Limited under section 154(1) of the Copyright Act 1968 (Cth) [2009] ACopyT 1  Copyright Act 1968 (Cth) ss 154, 163, 164, 166, 167 Copyright Tribunal (Procedure) Regulations 1969 (Cth) rr 47, 48  … Continue reading

By an originating process filed on 4 November 2010, the plaintiff (Cranney Farm), in its capacity as the trustee of the Cranney Family Trust, seeks an order under s 459G of the Corporations Act 2001 (Cth) for the setting aside of a statutory demand served on it by the defendant (Corowa Fertilizers) on 15 October 2010. While there is dispute as to whether the demand adequately identified the debt claimed as being due and payable, there is no doubt that it relates to an underlying debt owing by the former trustees of the Cranney Family Trust (Rohan and Geoffrey Cranney) for the supply of fertiliser for rural operations then being carried on by them in their capacity as trustees. 2 Cranney Farm concedes that it cannot, while it remains bound by a judgment given by Bryson AJ against it on 1 October 2010 ( Corowa Fertilizers Pty v Rohan and Geoffrey Cranney & ors , unreported 2009/291644), assert that there is a genuine dispute as to the existence of the claimed debt. Rather, it bases its application for the setting aside of the statutory demand on two grounds: first, pursuant to s 459J(1)(b) of the Corporations Act , that there is “some other reason why the demand should be set aside” (ie other than a defect in the demand, the existence of a genuine dispute or the existence of an offsetting claim) – Cranney Farm in fact submitting that there are two such (related but distinct) ‘other reasons’, those being the filing of a Notice of Appeal (said to have reasonable prospects of success) in relation to the judgment debt on which the statutory demand is based (which appeal, if successful, would mean that the judgment debt would be expunged) and, as a distinct but related reason, that Cranney Farm would be entitled to a stay of execution of the judgment debt; and secondly, pursuant to s 459J(1)(a) of the Act, that the demand is defective such that substantial injustice would be caused if the demand were not to be set aside, the defects identified being in relation to the amounts and descriptions of the debts contained in the schedule to the statutory demand. 3 I note that when the originating process which is now before me was filed (and indeed up until the hearing of the application before me had commenced), no Notice of Appeal from the decision of Bryson AJ had been filed (although a Notice of Intention to Appeal was filed on 29 October 2010, a copy of which was annexed to the affidavit sworn 1 November 2010 of Geoffrey Cranney as director of Cranney Farm and on its behalf on the current application). On 13 December 2010 a Notice of Appeal was filed, the appeal proceedings being listed for directions on 16 February 2011.

Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9 (2 February 2011) Last Updated: 14 March 2011 Supreme Court New South Wales Case Title: Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd Medium Neutral Citation: [2011] NSWSC 9 Hearing Date(s): 13 December 2010 Decision Date: 02 February 2011 Jurisdiction: Before: Ward … Continue reading

Livestock Transport (Sydney) Pty Limited is a horse transport company. It claims to have suffered substantial financial loss as a result of the introduction of equine influenza into Australia in August 2007, which greatly restricted horse movement and transport for a period of time. By these proceedings, Livestock Transport seeks to recover its losses from the Commonwealth of Australia. The claim is based on the allegation that the spread of the virus among horses in various parts of New South Wales and Queensland was due to negligence in the administration of the nation’s quarantine system. 2 Livestock Transport alleges that a stallion named “Snitzel” from Japan who was received at the Eastern Creek Quarantine Station was infected with equine influenza at the time of his arrival and that the virus subsequently escaped from that facility as a result of the fact that grooms, farriers and private veterinarians attending horses there were not required to take adequate steps to decontaminate themselves upon leaving the facility. It seeks to have the Commonwealth held liable for the consequences of those events as the entity responsible for quarantine in Australia, the occupier of the Eastern Creek Quarantine Station and pursuant to a statutory duty of care alleged to arise under the Quarantine Act 1908 (Cth). 3 The Commonwealth admits that it was the occupier of the Eastern Creek Quarantine Station and that it was responsible for quarantine in Australia but denies that it owed any duty of care to Livestock Transport in the circumstances alleged. The Commonwealth also denies that the virus escaped from the Eastern Creek Quarantine Station in the manner alleged, denies breach of any duty owed to Livestock Transport and denies that the company suffered any loss caused by the events alleged. 4 Separately, the Commonwealth has pleaded that it cannot be vicariously liable for the allegedly negligent acts or omissions of any of the relevant officers since those persons are immune from suit by operation of section 82(1) of the Quarantine Act (paragraph 52 of the defence). The Commonwealth further pleads that it cannot be liable because any loss suffered by Livestock Transport was caused by reason of the wrongful acts or omissions of public officers which occurred in the course of their acting in the performance or purported performance of a duty imposed by the Quarantine Act (paragraph 53 of the defence). The matter presently before the Court is an application by Livestock Transport to have those defences struck out.

Livestock Transport (Sydney) Pty Limited v Commonwealth of Australia [2011] NSWSC 7 (2 February 2011) Last Updated: 14 March 2011 Supreme Court New South Wales Case Title: Livestock Transport (Sydney) Pty Limited v Commonwealth of Australia Medium Neutral Citation: [2011] NSWSC 7 Hearing Date(s): 21 September 2010 Decision Date: 02 February 2011 Jurisdiction: Before: McCallum … Continue reading

CORPORATIONS – application for removal of liquidator pursuant to s 503 of the Corporations Act 2001 (Cth) on grounds of apprehended bias – HELD – application dismissed – ESTOPPEL – whether plaintiff estopped from seeking removal of liquidator on Anshun principles – whether application for removal otherwise an abuse of process – HELD – Anshun estoppel established

Accord Pacific Holdings Pty Ltd v Gleeson as liquidator of Accord Pacific Land Pty Ltd (in liq) [2011] NSWSC 1021 (2 September 2011) Last Updated: 5 September 2011 Supreme Court New South Wales Case Title: Accord Pacific Holdings Pty Ltd v Gleeson as liquidator of Accord Pacific Land Pty Ltd (in liq) Medium Neutral Citation: … Continue reading

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