mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556.
Case: Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957
Outcome: followed
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
To establish this ground the applicant must show that there was no evidence or other material upon which the President of HREOC could reasonably be satisfied that the decision of the NDPSC was not inconsistent with or contrary to any human right: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 357-358 (per Mason J). 42 The applicant properly and candidly conceded that on the evidence and material before HREOC, it was open for different people to reach different conclusions. So much was conceded in his written submissions when he stated that " the preponderance of detailed evidence presented in this case favours the position of the applicant." Where the preponderance of evidence lies is not a question for the Court to resolve. The question for the Court is whether there was evidence or other material to justify the decision made by HREOC. There clearly was. That is reason enough to conclude that the asserted ground is not made out.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 
Outcome: cited
HREOC has not amplified what it meant by the reference, in its decision, to the level of restriction adopted by NDPSC being "proportionate to the potential risks associated with the use of the plant". However, what HREOC said in its reasons is in no way inconsistent with it applying what the applicant says is the proper construction of Art 18(3) and, in particular, giving that article the meaning described in General Comment 22 by reference to the notion of the restriction being "directly related and proportionate". It follows that, to make good his complaint of error of law, the applicant must seek to argue from the actual conclusion reached by HREOC that it must have understood the relevant legal test incorrectly. It may be accepted that there may be cases in which such reasoning is permissible. (It is reasoning of a kind that may be said to be analogous to the last category of cases described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505 as warranting appellate intervention in a discretionary decision.) But it is reasoning that is available only if no answer to the relevant question is possible except the answer for which the applicant contends that total prohibition of use of the plant cannot be said to the "least restrictive" interference with the use of the plant that is consistent with the object of public health and safety. The premise was not made good. 35 Under this heading, the applicant also referred the court to a number of events which he described as evidence " raising the possibility of interference by organisations or individuals with knowledge of the plant" and which occurred on or about the same time as the plant was placed into Sch 9 of the Poisons Standard. The events identified by the applicant were the correction to the spelling of the scientific name of the plant in the applicant's medical records and the circumstances of his medical detention on 10 May 2001 the fact that the first known official reference to the plant in Australia was in a minute prepared by an officer of the TGA on 11 April 2001, the fact that the applicant was waiting for his paper entitled " Antidepressant effects of the herb salvia divinorum" to be published in the Journal of Clinical Psychopharmacology and a conversation the applicant had with a "US journalist". The coincidence of the timing of these events was said by the applicant to provide evidence that the plant was placed into Sch 9 for reasons other than health and safety. The complaint on this basis is entirely misconceived. In substance and in form, it seeks a review of the decision of the NDPSC. That is not open. Insofar as the applicant seems to suggest that HREOC took into account irrelevant considerations or was motivated by improper purposes, there is nothing to support the applicant's assertion that any of these events taken singularly or cumulatively motivated HREOC or, for that matter, the NDPSC. 36 The complaint of error of law fails.
Case: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 
Outcome: cited
It is unnecessary, in these circumstances, to embark upon the larger and more difficult question presented by the Commonwealth's submission that the construction of Art 18(3) of the ICCPR presents no question of law but presents only a question of fact. The corollary of the Commonwealth's submission was said to be that the proper construction of Art 18 was a matter for HREOC, was a question of fact which was at large and was therefore not a matter which was subject to judicial review under this ground of review. The correctness of that submission is not self-evident. Resolution of it would require examination and consideration of what question or questions of law are presented by the construction of s 20 of the HREOC Act when that section takes as its point of reference a human right as defined in the text of an international instrument, the ICCPR, set out in the Schedule to the Act and which, on the present state of the authorities, is not incorporated into municipal legislation: cf Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [34] - [38] and Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 286-287 (per Mason CJ and Deane J).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
In considering the applicant's various grounds of complaint, it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] -16] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Gummow J).
Case: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 
Outcome: cited
It is unnecessary, in these circumstances, to embark upon the larger and more difficult question presented by the Commonwealth's submission that the construction of Art 18(3) of the ICCPR presents no question of law but presents only a question of fact. The corollary of the Commonwealth's submission was said to be that the proper construction of Art 18 was a matter for HREOC, was a question of fact which was at large and was therefore not a matter which was subject to judicial review under this ground of review. The correctness of that submission is not self-evident. Resolution of it would require examination and consideration of what question or questions of law are presented by the construction of s 20 of the HREOC Act when that section takes as its point of reference a human right as defined in the text of an international instrument, the ICCPR, set out in the Schedule to the Act and which, on the present state of the authorities, is not incorporated into municipal legislation: cf Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [34] - [38] and Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 286-287 (per Mason CJ and Deane J).
Case: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367
Outcome: cited
In considering the applicant's various grounds of complaint, it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] -16] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Gummow J).
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: cited
Thirdly, there is no error of law simply in a decision-maker making a wrong finding of fact: Waterford v Cth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 (per Brennan J). Where different conclusions are reasonably open on the facts, the determination of which is the correct conclusion is a question of fact, not law: Williams v Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (per Mason JA).
Case: Williams v Williams Pty Ltd [1971] 1 NSWLR 547
Outcome: cited
Thirdly, there is no error of law simply in a decision-maker making a wrong finding of fact: Waterford v Cth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 (per Brennan J). Where different conclusions are reasonably open on the facts, the determination of which is the correct conclusion is a question of fact, not law: Williams v Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (per Mason JA).
Case: Commonwealth v Northern Land Council (1991) 30 FCR 1
Outcome: cited
In its written submissions CSR suggested that a document is discoverable if it is "reasonable to suppose" that it "contains information that may not must either directly or indirectly enable the party seeking the affidavit to advance [its] own case or damage that of [its] adversary": Commonwealth v Northern Land Council (1991) 30 FCR 1 at 23-4; and that a document will answer that description if it may fairly be expected to lead to a train of enquiry which may have either of those consequences. However, at the hearing of the motion, counsel for CSR conceded that the "train of enquiry" test, articulated in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, has now been superseded by O 15 of the Rules. General discovery will not routinely be ordered in every case. Practice Note 14 gives an indication at a practical level of how O 15 may operate. The Practice Note reflects a policy designed to reduce the burden of discovery. It notes that general discovery will not be ordered as a matter of course, and that orders for discovery will usually be limited to the documents required to be disclosed by O 15 r 2(3). O 15 r 2(3) provides that the documents required to be disclosed by a party making discovery are: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case.
Case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Outcome: cited
In its written submissions CSR suggested that a document is discoverable if it is "reasonable to suppose" that it "contains information that may not must either directly or indirectly enable the party seeking the affidavit to advance [its] own case or damage that of [its] adversary": Commonwealth v Northern Land Council (1991) 30 FCR 1 at 23-4; and that a document will answer that description if it may fairly be expected to lead to a train of enquiry which may have either of those consequences. However, at the hearing of the motion, counsel for CSR conceded that the "train of enquiry" test, articulated in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, has now been superseded by O 15 of the Rules. General discovery will not routinely be ordered in every case. Practice Note 14 gives an indication at a practical level of how O 15 may operate. The Practice Note reflects a policy designed to reduce the burden of discovery. It notes that general discovery will not be ordered as a matter of course, and that orders for discovery will usually be limited to the documents required to be disclosed by O 15 r 2(3). O 15 r 2(3) provides that the documents required to be disclosed by a party making discovery are: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case.
Case: Wellcome Foundation Limited v VR Laboratories (Aust) Property Limited [1981] HCA 12 ; (1981) 148 CLR 262
Outcome: considered
In Wellcome Foundation Limited v VR Laboratories (Aust) Proprietary Limited [1981] HCA 12 ; (1981) 148 CLR 262 at 270, Aickin J (with whom the other members of the Court agreed) said that where the patentability of an invention is challenged on the ground of obviousness: ... the question of obviousness involves asking the question whether the invention would have been obvious to a non-inventive worker in the field, equipped with the common general knowledge in that particular field as at the priority date, without regard to documents in existence but not part of such common general knowledge. The question is not whether it was or would have been obvious to the inventor or to some other particular worker in the field. 23 It is the common general knowledge in Australia which is material to the question of obviousness and not the common general knowledge in the country of origin: Wellcome Foundation 148 CLR at 284 285. The issue of obviousness "must be judged at the priority date": at 283. It is generally considered appropriate for the patentee to give discovery of its research, development and experimental work in connection with the alleged inventions: Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 at [22] per Branson J; F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 at 297 per Burchett J; Wellcome Foundation 148 CLR at 287 per Aickin J. Tamberlin J concluded in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235 at [7] that the appropriate formulation in relation to discovery of research material is to extend it to research or studies "in the course of which the invention was made". 30 While it accepts that documents relevant to an alleged lack of inventive step and an absence of a manner of manufacture should be confined to those created before the priority date ( Wellcome Foundation ) [1981] HCA 12 ; 148 CLR 262, CSR submitted that no such temporal limitation should be imposed in relation to documents relating to the allegation of false suggestion or misrepresentation. It said that the documents to be discovered should extend to the date of the making of the alleged representations. Those representations were made on 2 and 22 February 1999 and 2 March 1999 (in relation to Rockwool Patent #1) and 9 January 2004 (in relation to Rockwool Patent #2).
Case: Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526
Outcome: cited
It is the common general knowledge in Australia which is material to the question of obviousness and not the common general knowledge in the country of origin: Wellcome Foundation 148 CLR at 284 285. The issue of obviousness "must be judged at the priority date": at 283. It is generally considered appropriate for the patentee to give discovery of its research, development and experimental work in connection with the alleged inventions: Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 at [22] per Branson J; F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 at 297 per Burchett J; Wellcome Foundation 148 CLR at 287 per Aickin J. Tamberlin J concluded in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235 at [7] that the appropriate formulation in relation to discovery of research material is to extend it to research or studies "in the course of which the invention was made".
Case: F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295
Outcome: discussed
It is the common general knowledge in Australia which is material to the question of obviousness and not the common general knowledge in the country of origin: Wellcome Foundation 148 CLR at 284 285. The issue of obviousness "must be judged at the priority date": at 283. It is generally considered appropriate for the patentee to give discovery of its research, development and experimental work in connection with the alleged inventions: Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 at [22] per Branson J; F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 at 297 per Burchett J; Wellcome Foundation 148 CLR at 287 per Aickin J. Tamberlin J concluded in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235 at [7] that the appropriate formulation in relation to discovery of research material is to extend it to research or studies "in the course of which the invention was made". 28 Beyond the issue of research and development, Burchett J also held in Hoffmann-La Roche 171 ALR at [16] that "documents concerning any test to evaluate or determine the validity of the patent in any respect falling within any of the grounds in issue upon the pleadings" should be discovered.
Case: Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235
Outcome: discussed
It is the common general knowledge in Australia which is material to the question of obviousness and not the common general knowledge in the country of origin: Wellcome Foundation 148 CLR at 284 285. The issue of obviousness "must be judged at the priority date": at 283. It is generally considered appropriate for the patentee to give discovery of its research, development and experimental work in connection with the alleged inventions: Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 at [22] per Branson J; F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 at 297 per Burchett J; Wellcome Foundation 148 CLR at 287 per Aickin J. Tamberlin J concluded in Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235 at [7] that the appropriate formulation in relation to discovery of research material is to extend it to research or studies "in the course of which the invention was made".
Case: Merck &amp; Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 154 FCR 31
Outcome: discussed
In relation to manner of manufacture, the Full Court decisions in Bristol-Myers Squibb Company v FH Faulding [2000] FCA 316 ; (2000) 97 FCR 524 and Merck &amp; Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 154 FCR 31 establish that a party challenging the validity of a patent on this ground must demonstrate such invalidity by reference to matters that are apparent on the face of the specification, in light of the common general knowledge: see also Commissioner of Patents v Microcell Limited [1958] HCA 58 ; (1959) 102 CLR 232; NV Philips Gloeilampenfabrieken v Mirabella International Pty Limited [1995] HCA 15 ; (1995) 183 CLR 655. Rockwool, relying upon these cases, said it should not be required to discover any documents solely on the ground that they are relevant to the manner of manufacture. 39 It said that in light of the decisions in Bristol-Myers [2000] FCA 316 ; 97 FCR 524 and Merck [2006] FCAFC 91 ; 154 FCR 31, any documents relating to Rockwool's internal research programs, particularly on fibre types other than the HT fibres the subject of the Rockwool patents, cannot be relevant to the issue of manner of manufacture.