mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 221 ALR 448
Outcome: cited
no particular theory or rule of statutory interpretation obviates the need for close attention to the text and structure of the provision in question ( Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 221 ALR 448 at [30] ), the extrinsic materials are part of the context of the Act and relevant in interpreting the meaning of ' first inclusion in [the ARTG]'. The extrinsic materials, for whatever reason, do not give any clear indication of how the IP Amendment Act took its final form. That makes it difficult, if not impossible, to fix upon the references to ' marketing approval in Australia ' and ' bend ' the language of the Act to meet that purpose ( Stevens at [34]). What is clear from the Response, which is given effect in the IP Amendment Act, is that the extension of term scheme was introduced in recognition of the need to compensate for the time before which a patentee of a pharmaceutical substance can exploit the invention. Pfizer's submission that the relevant approval must be one which allows marketing in Australia in order to give effect to the policy of the IP Amendment Act ignores the fact that inclusion in the ARTG as Listed Goods permits the patentee to exploit the patent. This may not extend to marketing in Australia but it does enable a commercial return to the patentee. The consequence that this is less than full exploitation of the product in Australia is not contrary to the policy of the Act or the purpose of an extension to extend the "effective life" of the patent. The patentee's decision to obtain an early export only listing and thereby a shorter extended term is its choice and may have sound commercial reasons.
Case: Woolworths Limited v BP plc [2006] FCAFC 132
Outcome: cited
concern is that, if the entry in the Patents Register is amended and Pfizer succeeds on any appeal, the Commissioner would have no power to re-amend the Register. Pfizer's concern arises because of potential problems once the Patents Register is rectified by amending the date of expiry of the patents to the earlier date. This was the subject of consideration by the Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134 (' Woolworths No 1 ') and Woolworths Limited v BP plc [2006] FCAFC 132 ( 'Woolworths No 2 ') in the context of the Trade Marks Act 1995 (Cth). Sundberg and Bennett JJ in Woolworths No 1 at [52] and the Full Court in Woolworths No 2 at [149] were of the view that the Court has power to order the Register of Trade Marks to be rectified on appeal. No detailed submissions have been made as to the application of the Woolworths decisions in the context of the Act. Pfizer has not informed the Court whether it still seeks the stay order.
Case: Woolworths Limited v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134
Outcome: cited
concern is that, if the entry in the Patents Register is amended and Pfizer succeeds on any appeal, the Commissioner would have no power to re-amend the Register. Pfizer's concern arises because of potential problems once the Patents Register is rectified by amending the date of expiry of the patents to the earlier date. This was the subject of consideration by the Full Court in Woolworths Limited v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134 (' Woolworths No 1 ') and Woolworths Limited v BP plc [2006] FCAFC 132 ( 'Woolworths No 2 ') in the context of the Trade Marks Act 1995 (Cth). Sundberg and Bennett JJ in Woolworths No 1 at [52] and the Full Court in Woolworths No 2 at [149] were of the view that the Court has power to order the Register of Trade Marks to be rectified on appeal. No detailed submissions have been made as to the application of the Woolworths decisions in the context of the Act. Pfizer has not informed the Court whether it still seeks the stay order.
Case: Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52
Outcome: referred to
Legal professional privilege is confined to professional communications made on a confidential basis for legal advice and services. The concept of legal privilege is founded on the special significance that the Court attaches to the informed resolution of disputes in the court system and the application of the law to those disputes. In consequence, the communications which arise from that professional relationship are given special significance: see, for instance, Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 at 128 for a discussion of the rationale underlying the privilege. In essence, the purpose of legal privilege is to facilitate the giving of advice in the conduct of adversarial litigation to ensure that there is open communication between clients and legal advisers. 12 I consider that Documents 10-14 inclusive are privileged for the above reasons. 13 Document 15 is an affidavit by a son of the bankrupt whose only involvement in the bankruptcy of his parents was that he filed an initial debtor's petition in the estate of his father, which was subsequently set aside. I consider the same principles apply to this document as to the preceding documents.
Case: Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 442
Outcome: applied
Moreover, notification of the Decision cannot be treated as a separate 'decision' from the Decision for the purposes of s 476 of the Migration Act : Chung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 442. As Conti J said in Chung (at [19]): "For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3) , particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit." 13 This appeal was conducted by the parties on the basis that ss 494B and 494C of the Migration Act prescribed the methods by which the appellant was to be notified of the Decision. Sections 494B and 494C were inserted into the Migration Act by Schedule 3 to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). They took effect on 10 August 2001 and, as a matter of statutory construction, applied to the notification of the Decision by the Minister in 2005: Pearce DC and Geddes RS, Statutory Interpretation in Australia, 5 th ed, para [7.23]. 20 No appellable error has been identified. It is inappropriate for the Court to pre-empt a decision of the Tribunal as to whether it has jurisdiction. That is a question for the Tribunal: see Chung at [20]. 21 For those reasons, the appeal should be dismissed and the appellant should pay the respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 6 August 2007 Counsel for the Appellant: Mr A Krohn Solicitor for the Appellant: Erskine Rodan &amp; Associates Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 2007 Date of Judgment: 6 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1162.html
Case: Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327
Outcome: applied
The appellant was notified of the Decision some 8 years after the Decision was made. The appellant does not dispute he received notification in September 2005. Counsel for the appellant contended that the notification regime in the Migration Act is strict and peremptory and that the Minister failed to comply with ss 494B and 494C . He concedes the argument is technical. The Minister contends that the notification complied with ss 494B and 494C and referred the Court to the decision of Allsop J in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 at [49] . I adopt the reasoning of Allsop J in Zhan at [47]-[49]. In my view, the Federal Magistrate was correct to conclude that there was notification of the decision in 2005. The letter enclosing the decision was sent within three days of its date in the manner prescribed by ss 494B(4). The fact that it enclosed the Decision made some years earlier is unfortunate but does not render the notification invalid. As noted earlier, upon being notified of the Decision in September 2005, the appellant had a period of 28 days within which to seek a review of the Decision: s 412. He did not do so. 15 Finally, the Decision was and is a 'primary decision' within the meaning of that term in Division 2 of Part 8 of the Migration Act . Accordingly, the Federal Magistrates' Court had no jurisdiction in relation to the Decision: s 476 of the Migration Act . 16 The appeal should be dismissed on this ground alone.
Case: Mier v F N Management Pty Ltd [2006] 1 Qd R 339
Outcome: cited
Section 601EE(2) would not confer power on the Court to make an order creating substantive obligations. The true function of the subsection is as described by Keane JA, with whom the other members of the Queensland Court of Appeal agreed, in Mier v F N Management Pty Ltd [2006] 1 Qd R 339 at [15]-[16] as follows: 15. ... In Joye v Beach Petroleum NL (1996) 67 FCR 275 at 287, 290, the Full Court of the Federal Court approved the statement of McPherson SPJ in Re Crust 'N' Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd.R. 76 at 78 that: Winding up is a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled. 16. It follows, in my view, that where a statute makes reference, without more, to the "winding up" of an entity, it is referring to the application of a procedure containing these essential characteristics. It follows that s 601EE(2) must be read as empowering a court to make such orders as it considers appropriate in order to apply such a procedure to an unregistered managed investment scheme. It may also be accepted that the terms of the section allow for further orders to be made as needed so long as they are required for the "due conduct and completion of the winding up". The necessary corollary is that an order that could not reasonably be seen as advancing this procedure would not be authorised by s 601EE(2).
Case: P v P [1994] HCA 20 ; (1994) 181 CLR 583
Outcome: applied
The "law of the Commonwealth" for the purposes of the possible application of s 109 is not the 2002 Order, but s 601EE(2), under which that order is said to have been made: P v P [1994] HCA 20 ; (1994) 181 CLR 583 ; see especially per McHugh J at 635: The inconsistency is between the federal law and the State law and not the order of the federal court and the State law. 20 For the reasons already stated, s 601EE(2) was not, and could not have been, a source of power of the 2002 Order insofar as it provided for the payment of the Liquidator's costs and remuneration by the Trust out of the Fund. That source was s 108(2)(a)(iii) of the Legal Profession Act 1993 , an Act of the Tasmanian Parliament dealing with the obligations of the Trust, an entity established under Tasmanian law. Section 109 has no application because no Commonwealth law is relevantly in a condition of possible inconsistency with a State law. 21 The Order governing the winding up should reflect the change in the Trust's obligations consequent upon the 2007 legislation, which is valid.
Case: Re GDK Financial Solutions Pty Ltd; Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699
Outcome: followed
In Re GDK Financial Solutions Pty Ltd; Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (2006) 236 ALR 699 at [43], Finkelstein J pointed out that the section does not confer substantive obligations. His Honour said: 43. ...I do not accept that the power conferred by s 601EE(2) is without restriction. In particular, I do not accept that the section permits the court to impose an otherwise nonexistent obligation on a person to provide information to a receiver appointed to wind up a managed investment scheme. It is a well established principle of statutory construction that, in the absence of clearly expressed language to the contrary, courts will presume that legislation is intended to leave individual rights intact. 15 Section 601EE(2) does not confer on this Court the power to impose a legally enforceable obligation to pay the remuneration and costs of a liquidator on persons who previously bore no such obligation. Once that truism is accepted, the form of the 2002 variation to the 2001 Order is perfectly understandable. After the Tasmanian Parliament had enacted s 108(2)(a)(iii) of the Legal Profession Act 1993 , it would have been confusing and misleading to leave the 2001 Order in its existing form. Viewed objectively in the light of the surrounding circumstances, the purpose of the variation was to make the Order show what the source of the Liquidator's remuneration was now to be, given the recent enactment of s 108(2)(a)(iii). 16 Subsequent variations to the 2001 Order in 2007 and 2008 do not affect this conclusion. The variation in 2007 simply provided procedures for detailing expenses which consisted of legal fees. It also provided a further avenue for review by the Court, additional to those contained in par 2(c)(i) and (ii) of the 2001 Order (which provided, in general terms, for ASIC, Piggott Wood &amp; Baker, any investor in the scheme, or the Liquidator to apply to the Court for directions). The 2007 provision, par 2(c)(iii), for the Court's review is specifically directed to the District Registrar's review of the Liquidator's claim for costs and remuneration.
Case: Canute v Comcare [2006] HCA 47 ; (2006) 229 ALR 445
Outcome: applied
Mr Lang's notice of injury and compensation claim adequately disclose the nature of his claimed injury though they may be sparse on the circumstances giving rise to that injury. It is not necessary for me to speculate as to the reason for this as it is not directly relevant to the issue that I must decide. In Canute v Comcare [2006] HCA 47 ; (2006) 229 ALR 445 the High Court considered the concept of 'injury' under the SRC Act and said, at [10]: 'First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of injury is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.' (emphasis added)
Case: Comcare v Nichols (1999) FCA 209
Outcome: cited
Counsel for Mr Lang referred to Comcare v Nichols (1999) FCA 209 in which Heerey J applied Phillips v The Commonwealth of Australia [1964] HCA 22 ; (1964) 110 CLR 347 in the context of the SRC Act . In the latter case the High Court held, at 350: '... the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth . Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances.'
Case: Commonwealth of Australia v Borg [1991] FCA 710 ; (1994) 20 AAR 299
Outcome: referred to
Counsel for Mr Lang submitted that although the Tribunal identified the correct test for determining whether existing benefits may be cancelled, it failed to apply this test. The Tribunal referred to the decision in Commonwealth of Australia v Borg [1991] FCA 710 ; (1994) 20 AAR 299 at 370, where Jenkinson J said that a decision to cancel compensation should not be made unless the decision maker "was persuaded that one of the entitling circumstances had on or before" the date of the decision "ceased to exist". According to Mr Lang, however, the Tribunal failed to do this. 28 Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg . The Tribunal expressly accepted Dr Griffith's evidence that "in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004." This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal's decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a 'balance of probabilities' standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus.
Case: Frosch v Comcare [2004] FCA 1642
Outcome: referred to
In support of its submission that 'the injury must be the injury as identified by the notice and claim', Comcare relied on Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Frosch v Comcare [2004] FCA 1642. In Frosch at [8] , Whitlam J commented, with respect to similar requirements in s 53 of the SRC Act: 'the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.' I do not take issue with these comments but in my view they do not support Comcare's case. 47 Mr Lang notified Comcare as to his injury and broadly outlined his view as to how this injury occurred; see [4]-[5] above. Although his description was somewhat incoherent in my view, it is sufficient to meet the test outlined in Frosch. Mr Lang's notice indicated the nature of his injury and its connection to his employment, and is consistent with the concept of injury to which the High Court referred. 48 Comcare's determination in 1984 that accepted liability for Mr Lang's injury made no mention of the circumstances in which the injury was incurred, save to say that it was in the course of Mr Lang's employment. Comcare described the injury as 'aggravation of a pre-existing condition of pain in mid thoracic region'. This is the same condition/symptom discussed in Dr Talbot's report. Comcare's liability was not restricted to a 'nature and conditions' claim made by Mr Lang. 49 Counsel for Comcare argued that the mere fact that Mr Lang's fall in 1981 coincided with the date of his claim does not mean that Mr Lang's compensable injury included injuries sustained in the fall. This, of course, is correct, however Mr Lang claims (with some support from the expert medical evidence) that this fall contributed to the injury that was notified and accepted as a compensable injury and that this injury is a continuing cause of incapacity.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg . The Tribunal expressly accepted Dr Griffith's evidence that "in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004." This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal's decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a 'balance of probabilities' standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: referred to
Mr Lang's final ground of appeal concerned the Tribunal's failure to give its reasons in respect of several material facts, including (and this was the focus of Mr Lang's submissions) the failure to give reasons for its rejection of Dr Talbot's report as relevant evidence. The Tribunal is entitled to accept or reject the respective pieces of evidence before it, or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it, particularly where, as here, neither party made submissions on it. It would have been open for the Tribunal to reject Dr Talbot's evidence or simply to prefer the evidence of Dr Griffiths. The Tribunal is, however, obliged by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include in its reasons findings on all material questions of fact. As noted in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331 per Gleeson CJ and at 345-6 per McHugh, Gummow and Hayne JJ, with respect to a similar requirement found in s 430 of the Migration Act 1958 (Cth), this is not an obligation to make a finding on every question of fact that is regarded as objectively material by a court conducting judicial review of the Tribunal's decision. 54 Even if the Tribunal excluded consideration of the 1981 fall at the directions hearing it still had an obligation to give reasons for rejecting evidence that was plainly central to Mr Lang's claim and crucial to a medical report that supported that claim. Mr Lang was entitled to seek review of that decision.
Case: Phillips v The Commonwealth of Australia [1964] HCA 22 ; (1964) 110 CLR 347
Outcome: referred to
Counsel for Mr Lang referred to Comcare v Nichols (1999) FCA 209 in which Heerey J applied Phillips v The Commonwealth of Australia [1964] HCA 22 ; (1964) 110 CLR 347 in the context of the SRC Act . In the latter case the High Court held, at 350: '... the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth . Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances.'
Case: Telepacific Pty Limited v Commissioner of Taxation (2005) 218 ALR 85
Outcome: applied
If Comcare's submission about the directions hearing is incorrect, then plainly the Tribunal was required to indicate why it was that it preferred Dr Griffith's evidence. Given that the Tribunal had before it two medical reports that came to diametrically opposed conclusions it was obliged to explain why it either excluded one from its consideration or, if it considered both reports, why it preferred that of Dr Griffith. Its failure do so makes it impossible to understand the Tribunal's reasoning processes, and is itself an error of law; Telepacific Pty Limited v Commissioner of Taxation (2005) 218 ALR 85 at [54]. 56 For this reason Mr Lang's application must be allowed and the matter referred to the Tribunal for reconsideration according to law. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 6 February 2007 Counsel for the Applicant: D Richards Solicitor for the Applicant: Legal Aid (Australian Capital Territory) Counsel for the Respondent: L Walker Solicitor for the Respondent: Deacons Date of Hearing: 15 November 2006 &amp; 21 December 2006 Date of Judgment: 6 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/47.html