mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: cited
Section 47(10)(a) speaks of a circumstance in which the engaging by a corporation in conduct "has the purpose...". This is more readily amenable to a subjective construction of purpose than s 4D and has been so construed: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529. What has to be shown in such a case is "the actual purpose of the relevant respondent". But as the Full Court said of direct evidence from parties as to their purposes (at [256]): '... it will normally be critically scrutinised; it is often ex post facto and self-serving.' 42 In my opinion these authorities are consistent with the proposition that the law should generally be construed according to the ordinary meaning of the words it uses having regard to their context and legislative purpose. Where a mental state is referred to it should be construed as an actual mental state unless the context indicates a constructive or attributed mental state. 43 The conditions necessary to attract penalty tax under s 226L established by that provision were as follows: 1. The taxpayer has a tax shortfall for a year. 2. The shortfall was caused in whole or in part by the taxpayer treating an income tax law as applying in relation to a scheme in a particular way. 3. The scheme was a scheme within the meaning of Pt IVA that was entered into for the sole or dominant purpose of enabling a person to pay no tax or less tax. 4. The scheme is not one in relation to which ss 224, 225, 226 or 226AA apply.
Case: Krampel Newman v Commissioner of Taxation [2003] FCA 123 ; (2003) 126 FCR 561 
Outcome: cited
The purpose of s 226 was referred to by Ryan J in Krampel Newman v Commissioner of Taxation [2003] FCA 123 ; (2003) 126 FCR 561 at [120] where his Honour quoted with approval an observation by counsel based on the Explanatory Memorandum that: '... s 226L is intended to apply the same level of penalty as s 224, 225 and 226 for schemes entered into for the sole or dominant purpose of avoiding tax, but in respect of which the Commissioner has not applied any of the anti-avoidance provisions because the schemes are ineffective under the ordinary provisions of the ITAA eg s 51.'
Case: Newton v Federal Commissioner of Taxation [1958] HCA 31 ; (1958) 98 CLR 1
Outcome: cited
The language of s 224(2) may be contrasted in this respect with that of the former s 260, the ill-fated general anti-avoidance section. That section applied to "[e]very contract, agreement or arrangement ..." "so far as it has or purports to have the purpose or effect of in any way, directly or indirectly ....", inter alia, "defeating, evading or avoiding any duty or liability imposed on any person by this Act." In Newton v Federal Commissioner of Taxation [1958] HCA 31 ; (1958) 98 CLR 1, the Privy Council took an objective approach to the assessment of purpose under that provision and quoted with approval what Williams J had said in the High Court (at 8): 'The purpose of a contract, agreement or arrangement must be what it is intended to effect and that intention must be ascertained from its terms. These terms may be oral or written or may have to be inferred from the circumstances but, when they have been ascertained, their purpose must be what they effect.' The Privy Council said that the opening words of the section showed that it was not concerned with "the motives of individuals". However the language used in s 260 differed significantly from that of s 224 which refers to the "entry into or carrying out" of a scheme for the sole or dominant purpose of tax avoidance. See generally as to the relationship between s 260 and Pt IVA: Parsons, Income Taxation in Australia (Law Book Co, 1985) at 16-24 to 16-30. 52 It is to be recalled that s 226L was a penalty provision. The fact of entry into a tax avoidance scheme was a necessary condition of the imposition of the penalty for which it provided. If the purpose of penalties is to secure compliance with the tax laws, they may ordinarily be expected to be concerned with the conduct and purposes of defaulting taxpayers. That is to say their actual conduct and actual purposes. It is difficult to see why if two constructions of s 224(2) be available that construction should be adopted which would permit the imposition of a penalty by reference to a purpose which the taxpayer never had. Of course, purpose could be assessed even under s 224(2) by reference to objective factors. It may also be that the statements of individual taxpayers about their purposes relevant to the imposition of penalty would be given little weight. But the relative weight and extent of subjective and objective evidence relevant to that determination will be an accident of the particular proceedings in which the question arises. In this case the evidence of the taxpayers and the advisors was unchallenged.
Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: referred to
this is a case where the entitlement of the appellant to complain of a possible denial of procedural fairness would depend upon whether there was evidence that he was misled: cf Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [34] . It seems to me that the finding of the Federal Magistrate, set out at [44] above, that the appellant responded to the Tribunal without any misapprehension, forecloses the possibility of any valid complaint. Indeed, this is reinforced by the Federal Magistrate's observations, referred to at [45] above, about the appellant's attempts to mislead the Tribunal. It follows that the appeal must be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 2 July 2009 The First Appellant appeared in person. Counsel for the First Respondent: Mr J. Mitchell Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 10, 13 and 25 February 2009 Date of Judgment: 2 July 2009 ANNEXURE A ANNEXURE B AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/712.html
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: referred to
SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [52] - [53] , I expressed the view that the effect of the authorities is that the word "considers" in s 424A(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case; it is for the court to determine objectively whether the Tribunal considered the information to be dispositively relevant; see also Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . The information in the present case was quite different from that which was considered by the High Court in VEAL. In that case, an informant's letter was adverse to the applicant and contained information that was "credible, relevant and significant". Here, the equivocation about Mr Liu's involvement was not of that character. The information that was adverse was that Mr Liu had been held legally responsible for supply false certificates. The appellant was given full opportunity to deal with this.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
any event, the information in the email that it was not clear whether Mr Liu was implicated, was not "adverse" information within the test stated by Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 628-629.
Case: MZXQB v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483
Outcome: referred to
SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] , a Full Court drew attention to the word "considers" in s 424A(1). Their Honours said that the effect of this is that s 424A(1) is only enlivened where the Tribunal forms the opinion that particular information would be the reason or part of the reason for affirming the decision under review. In MZXQB v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483 at [27] , Heerey J described the test as one of "dispositive relevance".
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: referred to
question of whether s 424A(1) was engaged is to be determined in advance, and independently of the Tribunal's reasoning on the facts of the particular case; the need for "unbundling" of the Tribunal's reasons is "correspondingly reduced": SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [17] , [22].
Case: SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578
Outcome: referred to
SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 ; (2007) 164 FCR 578 at [33] , a Full Court drew attention to the word "considers" in s 424A(1). Their Honours said that the effect of this is that s 424A(1) is only enlivened where the Tribunal forms the opinion that particular information would be the reason or part of the reason for affirming the decision under review. In MZXQB v Minister for Immigration and Citizenship [2008] FCA 319 ; (2008) 166 FCR 483 at [27] , Heerey J described the test as one of "dispositive relevance".
Case: SZMNP v Minister for Immigration and Citizenship [2009] FCA 596
Outcome: referred to
SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [52] - [53] , I expressed the view that the effect of the authorities is that the word "considers" in s 424A(1)(a) is directed at the subjective consideration of the Tribunal on the facts of each case; it is for the court to determine objectively whether the Tribunal considered the information to be dispositively relevant; see also Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [12] .
Case: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Outcome: followed
question of whether s 422B(3) imposes a substantive obligation of fairness was considered by a Full Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, the decision in which was handed down immediately before the publication of these reasons. The effect of that decision is to dispose of the present appeal adversely to the appellant. This is because the Full Court held at [16]-[18] that s 422B(3) did not qualify the express statement in s 422B(1) that Div 4 contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. As the Full Court said in SZMOK , at [16], s 422B(3) is not a free standing obligation; it draws content from the other provisions of Div 4. It therefore cannot require s 424A to be interpreted as imposing an obligation not found to exist on the proper construction of that section. Here, there is nothing in s 424A which would have required the Tribunal to provide the full text of the email that was supplied to it by the Chinese speaking staff member to the appellant.
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 
Outcome: cited
The first respondent further submitted that the Federal Magistrate was entitled to rely upon the decision of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 for the proposition that the Tribunal is not required to examine evidence about international standards of State protection. 26 The first respondent submitted that, in any event, it was unnecessary for the Tribunal to consider the issue of State protection at all, because the Tribunal had already found that there was no real chance of the appellant being harmed in the future. In those circumstances, the issue of State protection did not arise: Respondents S152/2003 222 CLR 1 per McHugh J at [84]-[88]; SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 at [22] - [23] .
Case: SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
Outcome: cited
The first respondent submitted that the assertion raised by the appellant in the third ground of appeal that the Tribunal committed jurisdictional error by stating that the appellant had "fabricated aspects of his claim to enhance his application" was raised for the first time on the appeal. Nevertheless, the first respondent submitted that the authorities mentioned in the particulars by the appellant (being Rares J's decisions of SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [60] - [64] and SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [24] ) were irrelevant to this case. The first respondent further submitted that it was open to the Tribunal, for the reasons it gave, to find that the applicant had fabricated aspects of his claim to enhance his application for a protection visa. 34 It is not claimed in this ground of appeal that the Tribunal was under an obligation to give notice of any matter pursuant to s 424A of the Act. Rares J's decisions in SZGGT [2006] FCA 435 and SZEOP [2007] FCA 807 were concerned with the question of notice under s 424A. The third ground of appeal is not made out.
Case: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Outcome: cited
The first respondent submitted that the assertion raised by the appellant in the third ground of appeal that the Tribunal committed jurisdictional error by stating that the appellant had "fabricated aspects of his claim to enhance his application" was raised for the first time on the appeal. Nevertheless, the first respondent submitted that the authorities mentioned in the particulars by the appellant (being Rares J's decisions of SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [60] - [64] and SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [24] ) were irrelevant to this case. The first respondent further submitted that it was open to the Tribunal, for the reasons it gave, to find that the applicant had fabricated aspects of his claim to enhance his application for a protection visa. 34 It is not claimed in this ground of appeal that the Tribunal was under an obligation to give notice of any matter pursuant to s 424A of the Act. Rares J's decisions in SZGGT [2006] FCA 435 and SZEOP [2007] FCA 807 were concerned with the question of notice under s 424A. The third ground of appeal is not made out.
Case: SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104
Outcome: cited
The first respondent submitted that, in any event, it was unnecessary for the Tribunal to consider the issue of State protection at all, because the Tribunal had already found that there was no real chance of the appellant being harmed in the future. In those circumstances, the issue of State protection did not arise: Respondents S152/2003 222 CLR 1 per McHugh J at [84]-[88]; SVTB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 104 at [22] - [23] .
Case: Austal Ships Pty Ltd v Stena Rederei Aktiebolag (2005) 66 IPR 420
Outcome: referred to
In Austal Ships Pty Ltd v Stena Rederei Aktiebolag (2005) 66 IPR 420 at 422 [6] Bennett J noted the expression of the issue by Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 where, after an examination of the authorities governing the nature of the opposition proceeding, including the decision of the Full Court in Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 ; 92 FCR 106 , his Honour said the following at 70-71 [66] and [67]: "I have been taken to a number of other authorities in which questions have arisen as to the nature of the evidence that should be permitted in proceedings such as these. I do not regard any of those authorities as decisive one way or the other. As I have said, however, I do draw some comfort from the cases to which I have just referred for my conclusion, based on the scheme of the legislation, that there is a significant distinction to be drawn between the nature of an opposition proceeding under s 60 (or under the 1990 Act for that matter), on the one hand, and proceedings for revocation on other. The former is, in a sense, in the nature of an interlocutory proceeding, although any analogy tends to be misleading. There are some suggestions in early High Court authorities, that an opposition proceeding is in the nature of a summary proceeding ... Either analogy might suggest that the question to be determined in an opposition proceeding is whether there is a serious question as to whether or not a patent, if granted, might be valid. If there is, then the application should proceed to grant. The language employed in the cases to which I have referred suggests that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid. That, however, is not to say that an opponent should not be permitted appropriate opportunity to lead evidence-in-chief as to the facts that are designed to demonstrate, with the requisite degree of clarity, that a patent, if granted, would not be valid. Where the subject matter of the patent is one of complexity, of necessity, the evidence that an opponent would be entitled to adduce would itself be of considerable complexity." [citations omitted] 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .
Case: Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524
Outcome: referred to
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals Ltd [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: E I Du Pont de Nemours and Company v ICI Chemicals and Polymers Ltd [2003] FCA 291 ; (2003) 128 FCR 392
Outcome: referred to
The potential procedural consequences of the recognition of the nature of the task before the Court in an appeal from opposition proceedings were illustrated in E I Du Pont de Nemours and Company v ICI Chemicals &amp; Polymers Ltd [2003] FCA 291 ; (2003) 128 FCR 392 at 396-97 [25] , where Emmett J said: "In opposition proceedings, the opponent must establish that it is practically certain that the patent that would be granted on the application would be invalid. Thus, opposition should be confined to those grounds that have a fair potential to establish clearly that the prospective patent would be invalid. To permit an opponent, without some justification, to rely on new grounds of invalidity on an appeal from a decision of the Commissioner, or grounds abandoned below, may tend to be inconsistent with the object of opposition proceedings."
Case: E I Dupont de Nemours and Company v Imperial Chemical Industries Plc (2002) 54 IPR 304
Outcome: referred to
Similar views were expressed by Branson J in E I Dupont de Nemours and Company v Imperial Chemical Industries Plc (2002) 54 IPR 304. 12 I am bound by Genetics Institute Inc v Kirin Angen Inc [1999] FCA 742 ; 92 FCR 106, and, by comity, would respectfully follow the views of Emmett J in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; 99 FCR 56, Bennett J in Austal Ships 66 IPR 420 and Branson J in E I Dupont de Nemours v Imperial Chemical Industries 54 IPR 304 .
Case: Flexible Steel Lacing Company v Beltreco Ltd (2000) 49 IPR 331 at 350
Outcome: discussed
There was no disagreement about the expression of the principles of construction. The debate lay in the different application of them, in particular in the subtle question of the correct perspective from, or prism through, which to read the patent application. The construction of the claims takes place in the context of the specification as a whole, recognising the existence and role of the different parts thereof, the Court having placed itself in the position of someone acquainted with the state of the art: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39]; Welch Perrin &amp; Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 at 610; and Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 at 16 [24] . That said, two different people skilled in the art may take the meaning of the specification as a whole or the claims therein differently. That may reflect the perennial problem of the imprecision of language, meaning and perception or it may reflect different emphases taken from the prior art. In such cases (as to a degree is the case here) the following words of Hely J in Flexible Steel Lacing Company v Beltreco Ltd (2000) 49 IPR 331 at 350 [81] are apposite (in his Honour's always helpful, if I may respectfully say so, discussion of the principles of construction of patents at 347-350 [70]-[81]): "As a general rule, the terms of a specification should be accorded their ordinary English meaning. Evidence can be given by experts on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings given by such persons to words which might otherwise bear their ordinary meaning. However, the construction of the specification is for the Court, not for the expert witness. Insofar as a view expressed by an expert depends upon a reading of the patent, it cannot carry the day unless the Court reads the patent in the same way." [citations omitted]