mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Outcome: followed
In my view this is not a proper approach to the present application. The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31] [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: &#8226; In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. &#8226; There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. &#8226; Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. &#8226; Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 31 I do not think that this approach conflicts with the provisions of s 31A(3). 32 It is true that summary dismissal applications are to be determined on the pleadings and any evidence before the Court; but at the heart of the exercise is the assessment on incomplete materials, of the prospects of success if the matter proceeds to a final hearing; Boston Commercial at [38], [48]. 33 It would be wrong to determine the application on a narrow approach to the pleadings where, as here, there is evidence, albeit incomplete, and perhaps at this early stage, ambivalent, which may at a final hearing, and with amended pleadings, produce a verdict for the applicant.
Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
The knowledge which is required to give rise to a claim of accessory liability is actual knowledge. Constructive knowledge is not sufficient; Yorke v Lucas at 667 668, 670; Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [60] . See also Richardson &amp; Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693.
Case: Merrett v Babb [2001] QB 1174
Outcome: followed
Once it is accepted that there is a question to be tried as to whether Mr McDonald prepared and signed the Valuation, the case is very similar to the decision of the English Court of Appeal in Merrett v Babb [2001] QB 1174. 35 In that case a valuation report was signed by an employee of a firm which ceased to carry on business and the principal of which went into bankruptcy. The report was prepared for a building society that supplied a copy of the report to the purchasers of the property, omitting all reference to the name of the employee signatory and his firm. 36 The majority Justices, May LJ and Wilson J, held that the employee owed a duty of care to the purchasers. What underlies their observations at [44] and [61] are the concepts of assumption of responsibility and known reliance. 37 The facts deposed to by Mr Ewing in [2], [5] and [6] give rise to an arguable case in accordance with this principle.
Case: Richardson &amp; Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681
Outcome: cited
The knowledge which is required to give rise to a claim of accessory liability is actual knowledge. Constructive knowledge is not sufficient; Yorke v Lucas at 667 668, 670; Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [60] . See also Richardson &amp; Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: followed
The other basis on which the cross-claim is attacked is that it claims accessory liability under s 75B of the Trade Practices Act without satisfying the requirements of knowledge of the falsity of the representation which is said to underpin the claims. Thus, it is said that this aspect of the cross-claim cannot establish the necessary ingredients of the cause of action as stated by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 18 The evidence included a copy of the Valuation bearing the signature of Mr Ewing and the description of Mr McDonald below the signature purportedly of Mr O'Boyle as I have described above. 19 Mr McDonald's affidavit states in [5]: 'The signature appearing above my printed name is not mine. I did not sign the valuation report. I did not prepare the valuation report.' 50 The knowledge which is required to give rise to a claim of accessory liability is actual knowledge. Constructive knowledge is not sufficient; Yorke v Lucas at 667 668, 670; Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [60] . See also Richardson &amp; Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681 at 693.
Case: Brain v Ingledew Brown Bennison and Garrett (A Firm) [1996] FSR 341 
Outcome: approved
The conclusion as to whether a document amounts to a threat of infringement proceedings is essentially one of fact. See Brain v Ingledew Brown Bennison and Garrett (A Firm) [1996] FSR 341 at 349. The meaning of an alleged threat is to be decided in accordance with the understanding of an ordinary recipient in the position of the applicant, reading the letter in the normal course of business. See Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511 at 521. In that case at 523, and in Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225 at 233, the court appears to have treated the recipient's understanding of the alleged threat as relevant to its interpretation. However the matter seems to have been, at best, marginally relevant. I turn to the letters.
Case: Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511 
Outcome: cited
The conclusion as to whether a document amounts to a threat of infringement proceedings is essentially one of fact. See Brain v Ingledew Brown Bennison and Garrett (A Firm) [1996] FSR 341 at 349. The meaning of an alleged threat is to be decided in accordance with the understanding of an ordinary recipient in the position of the applicant, reading the letter in the normal course of business. See Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511 at 521. In that case at 523, and in Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225 at 233, the court appears to have treated the recipient's understanding of the alleged threat as relevant to its interpretation. However the matter seems to have been, at best, marginally relevant. I turn to the letters.
Case: Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225 
Outcome: cited
The conclusion as to whether a document amounts to a threat of infringement proceedings is essentially one of fact. See Brain v Ingledew Brown Bennison and Garrett (A Firm) [1996] FSR 341 at 349. The meaning of an alleged threat is to be decided in accordance with the understanding of an ordinary recipient in the position of the applicant, reading the letter in the normal course of business. See Brain v Ingledew Brown Bennison and Garrett (A Firm) (No 3) [1997] FSR 511 at 521. In that case at 523, and in Prince PLC v Prince Sports Group Inc (1997) 39 IPR 225 at 233, the court appears to have treated the recipient's understanding of the alleged threat as relevant to its interpretation. However the matter seems to have been, at best, marginally relevant. I turn to the letters.
Case: Earles Utilities Ltd v Harrison (1935) 52 RPC 77 
Outcome: followed
The letter of 5 October 2004 addresses a number of subjects without seeking to distinguish clearly between them. Thus, in para 1, the respondent's attorneys indicate that they represent it 'in matters relating to intellectual property and litigation ...' . This reference, by itself, might be understood as indicating the possibility of litigation in defence of intellectual property rights. The term 'intellectual property' is appropriate to describe rights held pursuant to a patent. Thus it might be said that the first sentence itself contemplates the possibility of litigation to protect rights under a patent, the most likely type of litigation being infringement proceedings. However it is important to note that a solicitor who indicates an intention to advise a client to commence infringement proceedings does not threaten for the purposes of s 128. See Earles Utilities Ltd v Harrison (1935) 52 RPC 77 at 80. 11 The writer then asserts that the applicant may be 'sourcing' medical devices having retractable needles from a Chinese company called Double Dove, with which company the respondent claims to have 'an exclusive manufacturing agreement' . Clearly, the matter of concern is the acquisition of retractable needles. The second sentence in para 1 suggests breach of the exclusive manufacturing agreement between the respondent and Double Dove. To this point there has been no assertion of intellectual property or of patents held in connection with retractable needle technology. 12 The second paragraph asserts that the exclusive marketing agreement prohibits Double Dove from manufacturing any needle product utilizing automated retraction technology of any type, for any entity other than the respondent, without its prior consent, and that such consent has not been given. It is then asserted that Double Dove has possession of confidential and trade secret information belonging to the respondent which it has expressly agreed not to use or disclose, except for the benefit of the respondent. Confidential and trade secret information, by definition, cannot refer to the subject matter of a patent.
Case: Townsend Controls Pty Ltd v Gilead (1989) 16 IPR 469
Outcome: followed
The matter has been further complicated by decisions of two members of this Court. In Townsend Controls Pty Ltd v Gilead (1989) 16 IPR 469 at 474-475, von Doussa J considered the availability of injunctive relief pursuant to s 121 of the 1952 Act. His Honour concluded that, in default of defence, a declaration or injunctive relief could not be granted 'without prior inquiry into the merits' . His Honour then observed (at 475): 'I consider the remedies of injunction and declaration should be treated as discretionary in the sense in which injunctions and declarations generally are discretionary in equity: See Benmax v Austin Motor Coy Ltd ... . Such relief should not be granted by consent or in default of appearance or appearance at trial unless it is established to the satisfaction of the court that is proper to do so.'
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
Section 65 of the Act imposes an obligation on the Minister to grant a protection visa to an applicant if satisfied of particular matters. The satisfaction of the Minister is a condition precedent to that obligation. The delegate of the Minister is in the same position as the Minister. The Tribunal exercises all of the powers and discretions conferred on the decision-maker under the Act . By s 420 of the Act , the Tribunal in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In undertaking the review function, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 424(1) , the Tribunal in conducting a review may obtain information that it considers relevant and must have regard to that information in making the decision on the review. Provisions which confer upon the Tribunal a capacity to inform itself by information it considers relevant and provisions which free the Tribunal from technicalities and the formal rules of evidence are, like s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), facultative provisions ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be "another question" ( Eshetu at [49]). Nevertheless, the Tribunal must reach conclusions which have a basis in evidence having rational probative force ( Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 at 685 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J).
Case: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666
Outcome: cited
Section 65 of the Act imposes an obligation on the Minister to grant a protection visa to an applicant if satisfied of particular matters. The satisfaction of the Minister is a condition precedent to that obligation. The delegate of the Minister is in the same position as the Minister. The Tribunal exercises all of the powers and discretions conferred on the decision-maker under the Act . By s 420 of the Act , the Tribunal in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. In undertaking the review function, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 424(1) , the Tribunal in conducting a review may obtain information that it considers relevant and must have regard to that information in making the decision on the review. Provisions which confer upon the Tribunal a capacity to inform itself by information it considers relevant and provisions which free the Tribunal from technicalities and the formal rules of evidence are, like s 33 of the Administrative Appeals Tribunal Act 1975 (Cth), facultative provisions ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be "another question" ( Eshetu at [49]). Nevertheless, the Tribunal must reach conclusions which have a basis in evidence having rational probative force ( Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 ; (1980) 31 ALR 666 at 685 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J).
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J.
Case: Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: cited
Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J.
Case: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: cited
Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
Although the Tribunal is not bound by rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence ( Rationality and Judicial Review of Administrative Action : Dr. G. Airo-Farulla, Vol. 24, Melbourne University Law Review, p 453: see also Reasonableness, Rationality and Proportionality : Dr. G. Airo-Farulla, Australian Administrative Law, edited by Groves and Lee, Cambridge University Press, 2007, Ch. 14; French J, Administrative law in Australia: Themes and values , Australian Administrative Law, Ch. 2). Describing the process of reasoning as irrational, illogical or based upon an unsound approach to the assessment of documents or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of the appellant disagreeing with a finding of fact ( Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 per Gleeson CJ at [5]. Thus, it is necessary to identify the nature and quality of the contended error and the precise legal principle that attracts a particular legal consequence, such as error of law. The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ. As to misconceptions which might suggest an unsupportable supposition on the part of the decision-maker, see Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to constraints upon a court interfering with a decision-maker's assessment of evidence, in exercising supervisory review of administrative decision-making, see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at pp 35-36 per Brennan J.