mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: applied
To the extent that the Respondent considered that employment in a firm could be considered employment in a company for the purposes of the regulation, it follows that he took an irrelevant consideration into account. However, that error may be put to one side because, on any view, it was an error which favoured the Applicant. If a proper construction of reg 20.3(3)(a)(ii) had been adopted, the result would not have been any different and thus the error was harmless: Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [104] (stating that relief on judicial review will be refused where the court is satisfied that the error did not affect the outcome of the administrative decision). 24 I now turn to a more detailed consideration of the purpose and context of the 1990 Patents Act as foreshadowed above. As these reasons for decision will demonstrate, there is nothing in the other provisions of the 1990 Patents Act or the Regulations, or the historical materials, which suggests, let alone supports, the Applicant's construction of reg 20.3(3)(a)(i) or (ii). On the contrary, those materials all demonstrate that it was the intention of the Parliament that a person in the position of the Applicant should not be registered as a patent attorney. 25 Section 198 forms part of Pt 1 of Ch 20 of the 1990 Patents Act . Chapter 20 is entitled "Patent Attorneys". Part 1 is entitled "Registration, Privileges and Professional Conduct". Offences are dealt with in Pt 2. 53 The failure by the decision maker to consider this issue thus does not assist the Applicant because consideration of it would not have led to a different result: Aala [2000] FCA 57 ; 204 CLR 82 at [104] . For these additional reasons, the Applicant's construction point fails. 54 The allegations were put on three bases: (1) that the Respondent "admit[ted] that the Respondent had deleted all the relevant emails which may have clearly established bias"; (2) to the extent that the Respondent had discovered materials, that documentation revealed that the Respondent did not wish to meet the applicant and the material contained other matters detrimental to the Applicant; and (3) the decision-maker had expressly made his thoughts known about the operation of reg 20.3(3)(a)(ii). 55 These grounds of review are also without merit, both independently and because, even if made out, they could not change the outcome in light of my conclusions on the proper construction of reg 20.3(3)(a) set out above.
Case: Saraswati v Queen [1991] HCA 21 ; (1991) 172 CLR 1
Outcome: followed
I cannot accept such a construction. It is true that s 15AA of the Acts Interpretation Act 1901 (Cth) directs a court to prefer a construction promoting the purpose or object of an Act. It is also true that patent textual ambiguity is not required in order to consult purpose (ie reference to purpose may be had both to raise as well as to resolve ambiguity): Saraswati v Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 22; see also Kowalski v Domestic Violence Crisis Centre Inc [2001] FCA 1082 ; (2001) 113 FCR 67 at [23] . 19 Nevertheless, the purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation ( Saraswati [1991] HCA 21 ; 172 CLR 1 at 22), ... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies[.] See also SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 at [44] - [45] (noting that where a party contends that a provision should not be given its literal or plain meaning, such a contention may lack force absent a plausible competing construction). The only exception to this rule is where the ordinary meaning would lead not just to an anomaly, but to a result that is "manifestly absurd" or "unreasonable": Saraswati [1991] HCA 21 ; 172 CLR 1 at 22; see also Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398 at [23]. 43 As noted earlier, a review of the statutory context, legislative history, and legislative purpose reveals an attempt to balance two competing objects: (1) the need to reduce barriers to entry and competition and thus reduce costs of patent attorney services; while (2) maintaining strict professional qualification requirements and thus safeguarding the public interest in receiving only high quality services. This understanding of context and purpose does not throw doubt on the construction of reg 20.3(3)(a) such as required by the High Court in Saraswati to justify judicial amendment of a statute or regulation that departs from the ordinary meaning. The legislative and regulatory scheme has hit on a compromise whereby in-house corporate patent practice (which would tend to be focused much more on out-of-court matters such as patent drafting and prosecution), but not ordinary law firm practice (which would tend to focus more on the giving of advice with respect to court-related matters such as validity and infringement proceedings), satisfies the registration requirements. This is entirely consistent with a legislative objective of partial deregulation while ensuring that high standards are maintained with respect to the complex technical arena of patent drafting and prosecution.
Case: Salomon v Salomon &amp; Co Ltd [1897] AC 22
Outcome: referred to
The Applicant contended that the reference to "in a company" should not be read literally but should be extended to include employment " in a company or a firm" . The Respondent adopted that construction in par 5.8 of his reasons for decision (see [7] above). I do not accept that references in reg 20.3(3)(a)(ii) to "company" should be read in that manner. A law firm, other than an incorporated legal practice, is not a company within the meaning of the Corporations Act ": see ss 9 and 119 (stating that a company means a company registered under the Corporations Act and comes into existence as a body corporate on the day of registration); Legal Profession Act 2004 (Vic) ss 2.7.2 and 2.7.4 (stating that an incorporated legal practice is a company within the meaning of the Corporations Act ). The Applicant accepted that his firm is not registered under the Corporations Act . Moreover, even assuming that the definition found in the Corporations Act should not be interpolated into reg 20.3(3)(a)(ii), the ordinary common law understanding of company would not assist the Applicant either: Macleod v Queen [2003] HCA 24 ; (2003) 214 CLR 230 at [28] (stating that the essential meaning of "company" since the time of Salomon's Case , has been as a body with a separate legal identity); see also Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525 at [3] - [4] (observing the historical distinction, dating back to Salomon's Case , between firms (partnerships) and companies (corporations)); Salomon v Salomon &amp; Co Ltd [1897] AC 22. Again, the Applicant presented no evidence that White SW Computer Law is a distinct legal entity as opposed to an unincorporated sole proprietorship.
Case: Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525
Outcome: cited
The Applicant contended that the reference to "in a company" should not be read literally but should be extended to include employment " in a company or a firm" . The Respondent adopted that construction in par 5.8 of his reasons for decision (see [7] above). I do not accept that references in reg 20.3(3)(a)(ii) to "company" should be read in that manner. A law firm, other than an incorporated legal practice, is not a company within the meaning of the Corporations Act ": see ss 9 and 119 (stating that a company means a company registered under the Corporations Act and comes into existence as a body corporate on the day of registration); Legal Profession Act 2004 (Vic) ss 2.7.2 and 2.7.4 (stating that an incorporated legal practice is a company within the meaning of the Corporations Act ). The Applicant accepted that his firm is not registered under the Corporations Act . Moreover, even assuming that the definition found in the Corporations Act should not be interpolated into reg 20.3(3)(a)(ii), the ordinary common law understanding of company would not assist the Applicant either: Macleod v Queen [2003] HCA 24 ; (2003) 214 CLR 230 at [28] (stating that the essential meaning of "company" since the time of Salomon's Case , has been as a body with a separate legal identity); see also Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525 at [3] - [4] (observing the historical distinction, dating back to Salomon's Case , between firms (partnerships) and companies (corporations)); Salomon v Salomon &amp; Co Ltd [1897] AC 22. Again, the Applicant presented no evidence that White SW Computer Law is a distinct legal entity as opposed to an unincorporated sole proprietorship.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
Fourthly, the Applicant also submitted that he should have been informed of and been given an opportunity to respond to the Respondent's construction of reg 20.3(3)(a)(ii). That contention was misconceived. There was no suggestion that: 1. the Applicant had been denied an opportunity to comment on adverse material from other sources ( VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [15] and [17]); 2. the Applicant's account of crucial events was in issue so that he needed to be put on notice that his account had not been accepted ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [36] - [43] ); or 3. the authenticity of the Applicant's material was to be the subject of adverse findings so that he needed to be given an opportunity to comment on it ( VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [54] - [64] .
Case: SZIGW v Minister for Immigration and Citizenship [2007] FCA 203
Outcome: cited
With respect to the Applicant's attempt to agitate the reg 20.3(3)(a)(i) argument in this Court, "[i]t is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law": SZIGW v Minister for Immigration and Citizenship [2007] FCA 203 at [13] (citations omitted; emphasis added); see also Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (stating that failure to timely raise a point may be deemed waiver of that point). In the instant case, it is at best questionable whether all of the relevant facts that would establish beyond controversy that the Applicant has been employed as a technical assistant are before the Court. In particular, the record does not disclose that the Applicant has ever drafted a patent specification or prosecuted a patent (which is not surprising, given that evidence to that effect might also suggest that the Applicant had committed an offence under s 202 of the 1990 Patents Act ): cf Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141 at [31] (suggesting that a "technical assista nt" is one who has the duty of prosecuting patent applications on behalf of clients, under the supervision of a registered patent attorney). Even accepting the Applicant's statutory declaration at face value, it states only that he has "liaised with patent attorneys in relation to the preparation and filing of patent specifications on behalf of [his] clients." Accordingly, the Applicant's claim under reg 20.3(3)(a)(i) would ordinarily fail at the outset both because it was not clearly raised below and because not all of the facts necessary to make good the point have been established beyond controversy.
Case: SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
Outcome: cited
Nevertheless, the purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation ( Saraswati [1991] HCA 21 ; 172 CLR 1 at 22), ... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies[.] See also SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 at [44] - [45] (noting that where a party contends that a provision should not be given its literal or plain meaning, such a contention may lack force absent a plausible competing construction). The only exception to this rule is where the ordinary meaning would lead not just to an anomaly, but to a result that is "manifestly absurd" or "unreasonable": Saraswati [1991] HCA 21 ; 172 CLR 1 at 22; see also Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398 at [23].
Case: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Outcome: cited
Fourthly, the Applicant also submitted that he should have been informed of and been given an opportunity to respond to the Respondent's construction of reg 20.3(3)(a)(ii). That contention was misconceived. There was no suggestion that: 1. the Applicant had been denied an opportunity to comment on adverse material from other sources ( VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [15] and [17]); 2. the Applicant's account of crucial events was in issue so that he needed to be put on notice that his account had not been accepted ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [36] - [43] ); or 3. the authenticity of the Applicant's material was to be the subject of adverse findings so that he needed to be given an opportunity to comment on it ( VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [54] - [64] .
Case: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
Fourthly, the Applicant also submitted that he should have been informed of and been given an opportunity to respond to the Respondent's construction of reg 20.3(3)(a)(ii). That contention was misconceived. There was no suggestion that: 1. the Applicant had been denied an opportunity to comment on adverse material from other sources ( VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [15] and [17]); 2. the Applicant's account of crucial events was in issue so that he needed to be put on notice that his account had not been accepted ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [36] - [43] ); or 3. the authenticity of the Applicant's material was to be the subject of adverse findings so that he needed to be given an opportunity to comment on it ( VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [54] - [64] . 62 Finally, a number of the Applicant's allegations proceeded on the basis that the Respondent was under an obligation to provide the Applicant with an opportunity to comment on documents (specifically, memoranda from the Acting Secretary of the Professional Standards Board for Patent and Trade Marks Attorneys dated 4 October and 11 October 2007) which contain no more than opinions on, or rejections of, the Applicant's material. That premise is wrong. An applicant in an administrative context is entitled to comment only on adverse information that is "credible, relevant and significant": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 88-90 and VEAL [2005] HCA 72 ; 225 CLR 88 at [15] and [17]. "Credible, relevant and significant" material is "information that cannot be dismissed from further consideration by the decision-maker before making the decision": VEAL [2005] HCA 72 ; 225 CLR 88 at [17] . As the Respondent's letters of 9 August 2007, 10 and 11 October 2007, and 22 November 2007 demonstrate, the Respondent took the consistent view that the Applicant did not satisfy the requirements of reg 20.3(3)(a) based on a plain reading of the regulation. There is no evidence that the Respondent could not or did not dismiss from further consideration the Acting Secretary's opinions of the Applicant's material, given that his 11 October 2007 rejection of the Applicant's application was for the same reason as his 9 August 2007 tentative rejection - namely, that even accepting that all of the material provided by the Applicant was true and correct, the Applicant failed as a matter of law to satisfy the requirements of reg 20.3(3)(a) - and did not turn on any credibility or evidentiary issues. That the Respondent had already tentatively reached that view before ever receiving the October memoranda from the Acting Secretary conclusively demonstrates that the memoranda played no part, much less a significant one, in the Respondent's consideration or decision.
Case: Zhang De Yong v Minister for Immigration, Local Government and Ethic Affairs [1993] FCA 489 ; (1993) 45 FCR 384
Outcome: cited
Thirdly, there was no requirement for the Respondent to provide the Applicant with an oral hearing. Not only is there no general rule that decision makers making a decision affecting a person are bound to conduct a face to face interview or a hearing (see Zhang De Yong v Minister for Immigration, Local Government and Ethic Affairs [1993] FCA 489 ; (1993) 45 FCR 384 at 410, but the express words of reg 20.4 refer to written, not oral, forms of application. Even if, contrary to the view I have formed, the Respondent was obliged to provide the Applicant with an oral hearing (a view I reject), that oral hearing could not have produced a different result for the reasons discussed above.
Case: Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362
Outcome: referred to
alleged unconscientious conduct of Telstra in the context pleaded is not inconsistent, indeed, it is totally consistent, with the pleading in [79] of the TCASC. This is particularly so where the terms of s 51AA of the TPA itself refer to conduct that is 'unconscionable' within the meaning of the unwritten law, i.e., the general law, by reference to which the concept of 'unconscientiously' has figured prominently: see Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 415 per Kitto J and Commercial Bank of Australia Ltd v Amadio at 461 per Mason J. Nor, in my view, can the pleading at [79] of the TCASC be rejected on the basis that it is out of time. Having regard to the way the allegation is pleaded, in particular in its reliance on [76] and [78] and the references therein to Telstra's use and continued use of the confidential information, it is strongly arguable that a cause of action arises each time Optus suffers loss or damage by reason of a further contravention by Telstra of s 51AA of the TPA. In these circumstances, as Optus submits, the limitation period pursuant to subs 82(2) of the TPA would only become relevant on the question of relief; not on the question of whether there is a cause of action. Nor do I think Telstra's criticism of the way in which this matter is pleaded warrants a denial of leave being granted in the terms sought. Any such deficiency should be capable of being remedied by further and better particulars and only if it cannot, might an application for its striking out be entertained.
Case: Commonwealth Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447 
Outcome: referred to
points out that at all times since the commencement of the proceedings its pleading included the allegation that Telstra's use of Optus' confidential information for improper purposes 'was and is unconscientious and in breach of the duty of confidentiality owed by Telstra to Optus Networks in respect of the confidential information'. Optus submits that these words, and in particular the word 'unconscientious', were sufficient to raise the claim that now appears in more specific terms in [79] of the TCASC. Section 51AA imports equitable concepts of unconscionable conduct, and in that context the word 'unconscientious' is and always has been associated with the grant of relief in cases of unconscionable dealing. See, e.g., Commonwealth Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447 at 461 per Mason J. In this area, the 'overriding aim of all equitable principle is the prevention of unconscionable behaviour a term which can be seen to encompass duress, undue influence and "unconscionable dealing as such"': ACCC v CG Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at 498 per French J, quoted with approval by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at [99] . Optus submits that the allegation that Telstra's use of Optus' confidential information for improper purposes was 'unconscientious' in previous versions of the pleading was closely associated with the allegation of breach of confidence. Similarly, the allegation of unconscionable conduct now contained in [79] of the TCASC is not at large. That paragraph expressly refers back to [76] and [78] of the TCASC, which plead breach of obligations of confidence. In terms, the unconscionable conduct claim turns upon the same fundamental allegations as the claims for breach of the Access Agreement and equitable breach of confidence. The respective claims are and always have been tied together. There has been no change in Optus' position in this regard. Telstra rejects Optus' submission that Optus' reference to the word 'unconscientious' in the CASC is equivalent to an allegation that Telstra engaged in unconscionable conduct in breach of s 51AA of the TPA. Telstra further rejects Optus' submission that this proposed claim is longstanding and the proposed amendment was merely to 'better and more specifically' articulate the basis of Optus' entitlement for the benefit of Telstra.