mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: cited
in turn were enlarged upon in Mr Kronen's written submissions. These revealed that much of his complaint was with matters of fact involving merits-review. He is now aware that a wrong fact finding is not sufficient to establish an error of law: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77. Nonetheless, the submissions also exposed that he was taking issue with the manner in which the Tribunal purported to apply the statute to the circumstances. In this one can discern that in several respects he was contending that the Tribunal fell into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, and to ignore relevant material, so exceeding its authority or powers: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. The essence of his complaints are both that the Tribunal failed to apply the correct sections of the Act (eg s 615), and misconstrued or misapplied the terms of the Act (eg "to be negotiated" or "reasonable excuse"). To this extent, as I will indicate, I am satisfied that Mr Kronen's application to this Court has in some degree enlivened its jurisdiction under the AAT Act. Nonetheless, I am satisfied that the proceeding has no reasonable prospects of success and for the reason that in ascribing error to the Tribunal he misapprehends the scheme of the Act and of the decision-making processes it mandates.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
in turn were enlarged upon in Mr Kronen's written submissions. These revealed that much of his complaint was with matters of fact involving merits-review. He is now aware that a wrong fact finding is not sufficient to establish an error of law: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77. Nonetheless, the submissions also exposed that he was taking issue with the manner in which the Tribunal purported to apply the statute to the circumstances. In this one can discern that in several respects he was contending that the Tribunal fell into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, and to ignore relevant material, so exceeding its authority or powers: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. The essence of his complaints are both that the Tribunal failed to apply the correct sections of the Act (eg s 615), and misconstrued or misapplied the terms of the Act (eg "to be negotiated" or "reasonable excuse"). To this extent, as I will indicate, I am satisfied that Mr Kronen's application to this Court has in some degree enlivened its jurisdiction under the AAT Act. Nonetheless, I am satisfied that the proceeding has no reasonable prospects of success and for the reason that in ascribing error to the Tribunal he misapprehends the scheme of the Act and of the decision-making processes it mandates.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: applied
to this trio is Mr Kronen's conception of what is signified by the words "to be negotiated" in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of "negotiate" is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic , 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed. If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the "right to negotiate" could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement. The Tribunal clearly understood this was the case: see Reasons [106]-[108]. It committed no error of law in construing and hence giving legal effect to the "negotiation expectation" of s 605(3) as it did. Further, the Tribunal satisfied itself on the evidence before it that the requirements Maxima sought to impose were reasonable and that those upon which Mr Kronen insisted were unreasonable in the circumstances. These fact findings were open to it and were unimpeachable in this proceeding.
Case: Port of Brisbane Corporation v Federal Commissioner of Taxation [2004] FCA 1232
Outcome: considered
There is one case concerning par (ac). It is Port of Brisbane Corporation v Federal Commissioner of Taxation [2004] FCA 1232. That was an appeal from a decision of the Administrative Appeals Tribunal and was therefore limited to questions of law. The decision appears to have been based upon a finding that the Administrative Appeals Tribunal had considered irrelevant material in construing the relevant legislative provisions. In those circumstances, the decision can be of little assistance for present purposes. 35 This case depends upon the meaning of the expression "in rail transport". A considerable amount of time was spent in discussing the meaning of the word "in", in my opinion, not a particularly fruitful area of debate. To my mind, the more significant aspect is the word "transport", with any particular connotations that the word "rail" may contribute. The Shorter Oxford Dictionary defines the word "transport", used as a noun, to mean: 'transfer or conveyance of property ... the carrying or conveyance of a person or thing from one place to another ... a system or means of transportation or conveyance of people, goods etc ...' 36 The question depends substantially upon whether, in the present context, the word "transport" means the carriage or conveyance of persons or things or the system of transportation or conveyance. The Commissioner advanced the former view. Queensland Rail advanced the latter. The Commissioner submitted that the word "in" connoted such a close association between the use of the diesel fuel and the rail that it could only be satisfied if the usage occurred on the rail. Thus the movement of persons or goods (including Queensland Rail's own equipment) on rail would be included, but loading or unloading a train with loading equipment, which was not on-rail, would not. Similarly, the use of diesel fuel in rail-mounted track maintenance equipment would be included, but such use in non-rail mounted equipment would not. 37 This approach may give too much significance to the word "rail" which is used adjectivally to qualify the word "transport". The preposition "in" governs the noun "transport". In other words the phrase "in rail transport" means "in transport which uses rail". 38 If Parliament had intended that only use of diesel fuel in activities on-rail was to attract the rebate, it would have been easy to say so. Language analogous to the very specific language used for the purpose of excluding the rebate in the case of vehicles used on public roads and use relating to forestry might have been appropriate. Paragraphs (ad), (b), (c) and (d) are "place-specific" and might also have been appropriate models for a requirement that the relevant activity occur "on-rail".
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: followed
Lindgren J has recently collected the cases on the meaning and effect of s 31A and comparable provisions: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [58] - [59] , where he considered the test to be whether there are "real" as opposed to "fanciful" or "merely arguable" prospects. 10 Lilly's motion gives rise to three issues. The first is the viability of the applicant's claim to relief under s 52 of the Trade Practices Act . The second is whether the applicant has standing to claim relief under the ADJR Act, s 192 of the Patents Act and s 39B of the Judiciary Act . The third is whether, assuming it has standing, it should be denied relief because of its delay. In a s 31A context, in each case the question is whether the Court is satisfied that there is no reasonable prospect of the applicant succeeding in the relevant claim or issue. 11 The applicant alleges that in applying for an extension of the term of the Patent, Lilly represented to the first respondent (the Commissioner) that the pharmaceutical substance on the ARTG on which it relied was disclosed in claims 1 to 4 and 6 of the Patent. The applicant alleges that these representations were made in trade and commerce and were false.
Case: Glueck v Stang (2008) 76 IPR 75
Outcome: followed
In Glueck v Stang (2008) 76 IPR 75 the applicant alleged that Novopharm, in trade or commerce, engaged in misleading and deceptive conduct in relation to an application to the Australian Patent Office for the grant of letters patent. At [32] to [33] Lindgren J said: The course of authority outlined above requires me to hold that the alleged representations by Novopharm to the APO ... were not made in trade or commerce. They were not made in the course of a trading or commercial relationship between Novopharm on the one hand, and ... the APO ... on the other hand. Novopharm had no trading or commercial dealings with the APO .... Nor were they made in the course of the negotiation of contracts .... The alleged representations were made to a government instrumentality pursuant to legislation for the purpose of obtaining an exclusive right or bundle of rights made available by that legislation. No doubt the alleged representations were made by Novopharm in trade or commerce in a broad non-s 52 sense. However, in Concrete Constructions the High Court ... rejected the view that the expression 'in trade or commerce' in s 52 referred to the 'immense field of activities' in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business .... 14 The applicant sought to distinguish the present case from Glueck on the ground that the facts of the two cases were different. That is true, but the proposition derived by Lindgren J from the authorities referred to is applicable here. Essentially that is because of the passage in Concrete Constructions at 604, upon which Glueck was based, in which it was said: What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it ... has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. It is that relationship that is absent here. I am not persuaded that Glueck is plainly wrong, and accordingly I should follow it.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: applied
The course of authority to which Lindgren J referred consisted of Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 , Village Building Co Ltd v Canberra International Airport (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 at [57] - [58] , affirmed on appeal at [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] , and RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22. 14 The applicant sought to distinguish the present case from Glueck on the ground that the facts of the two cases were different. That is true, but the proposition derived by Lindgren J from the authorities referred to is applicable here. Essentially that is because of the passage in Concrete Constructions at 604, upon which Glueck was based, in which it was said: What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it ... has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. It is that relationship that is absent here. I am not persuaded that Glueck is plainly wrong, and accordingly I should follow it.
Case: Village Building Co Ltd v Canberra International Airport (No 2) [2004] FCA 133 ; (2004) 134 FCR 422
Outcome: cited
The course of authority to which Lindgren J referred consisted of Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 , Village Building Co Ltd v Canberra International Airport (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 at [57] - [58] , affirmed on appeal at [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] , and RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22.
Case: RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22
Outcome: cited
The course of authority to which Lindgren J referred consisted of Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 , Village Building Co Ltd v Canberra International Airport (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 at [57] - [58] , affirmed on appeal at [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] , and RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22.
Case: Assa Abloy Australia Pty Ltd v Australian Lock Co Pty Ltd [2005] FCAFC 246 ; (2005) 68 IPR 105
Outcome: applied
In Assa Abloy Australia Pty Ltd v Australian Lock Co Pty Ltd [2005] FCAFC 246 ; (2005) 68 IPR 105 at [19] the Full Court referred to the observations of McLelland J in a trade mark context in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193 ( Ritz ), and said: [Adapting] that language to the design context, the expression would embrace any person having a real interest in having the entry expunged and thus would include any person who would be or in respect of whom there is a reasonable possibility of his or her being 'appreciably disadvantaged in a legal or practical sense' by the entry not being expunged. 27 I return to the Assa Abloy test recorded at [18]. Adapted to the present case, the question is whether there is a reasonable possibility that the applicant would be disadvantaged in the sense that it would be prevented from exploiting the invention in any of the respects falling within the definition of "exploit" in the Patents Act . That includes a number of things preparatory to placing a product in the marketplace. Matters falling within the concept of "launching" a product include importing, keeping for the purpose of offering for sale, and using. In my view the fair reading of par 49 of Mr Gray's affidavit is that propounded by the applicant. Nor do I think the use of the word "marketing" in par 26 of that affidavit bears the emphasis Lilly places on it. All Mr Gray is saying is that in order successfully to sell a product, that is to say make money out of it, PBS listing is essential. As appears from [19] and [21], the applicant has pleaded only that it has not yet obtained TGA approval, believes it will obtain it in late 2008 or early 2009, and will not import and sell the product until it receives TGA registration. It does not plead PBS listing as a precondition. The Assa Abloy test speaks of the existence of a reasonable possibility of disadvantage. For the purposes of a s 31A application, I am not satisfied that that possibility does not exist. I am not persuaded that the applicant has no reasonable prospect of successfully prosecuting the ADJR, s 192 and s 39A parts of the proceeding by reason of a lack of standing. 28 Section 11(1)(c) of the ADJR Act provides that an application for an order of review in relation to a written decision "that was furnished to the applicant" must be lodged within the prescribed period or within such further time as the court allows. Under sub-s (3) the prescribed period is the period commencing on the day on which the decision is made and ending on the 28 th day after the decision is "furnished to the applicant". Subsection (4) provides that where no period is prescribed, the court may refuse to entertain an application if of the opinion that the application was not made within a reasonable time after the decision was made. In forming an opinion for the purposes of subs (4), the court is to have regard to the time at which the applicant became aware of the making of the decision: subs (5)(a).
Case: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Outcome: considered
In Assa Abloy Australia Pty Ltd v Australian Lock Co Pty Ltd [2005] FCAFC 246 ; (2005) 68 IPR 105 at [19] the Full Court referred to the observations of McLelland J in a trade mark context in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193 ( Ritz ), and said: [Adapting] that language to the design context, the expression would embrace any person having a real interest in having the entry expunged and thus would include any person who would be or in respect of whom there is a reasonable possibility of his or her being 'appreciably disadvantaged in a legal or practical sense' by the entry not being expunged.
Case: Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377
Outcome: followed
In my view delay in relation to the ADJR part of the proceeding is to be determined under s 11(4) and (5) and not under subs (3). In this case the applicant discovered the existence of the decision through its own resources. I agree with Pincus J in Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377 that the expression "furnished to the applicant" contemplates delivery specifically to the applicant by the decision-maker. Accordingly the matter is to be approached under subss (4) and (5). 30 It is common ground that the alleged delay in relation to the s 192 and s 39B parts of the case are to be dealt with on the same basis as the ADJR aspect, so that relief may be refused if application was not made within a reasonable time. 31 A chronology of the relevant events will assist in understanding the parties' contentions on delay. 14 January 2000 Extension of term granted 12 March 2002 Applicant incorporated May 2003 Applicant signed agreement with EBEWE Pharma Late May 2005, 2006- 2007 Dr Schnait of EBEWE Pharma tells Mr Gray that while Lilly had an Austrian patent for the product he could find no equivalent patent in Australia 2 August 2007 Applicant becomes aware of Australian patent and extension of term 12 October 2007 Applicant obtains patent file from IP Australia 26 October 2007 Applicant's TGA application 5 December 2007 Applicant writes to Lilly contending that extension of term was wrong and seeking confirmation of this 18 December 2007 Lilly sends letter of demand as to infringement 20 December 2007 Applicant seeks without prejudice meeting with Lilly to discuss commercial resolution 11 January to 27 February 2008 Communications about without prejudice meeting 28 February 2008 Without prejudice meeting 6 March 2008 Negotiations break down; Lilly sends second letter of demand 18 March 2008 Applicant informed of Austrian injunction 19 March 2008 Applicant seeks review of extension
Case: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Outcome: applied
The principles which ordinarily govern the exercise of the Court's discretion to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) where an applicant no longer wishes to proceed were identified in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201. Those principles, so far as presently relevant, may be summarised as follows. First, the Court should be ready to facilitate the conclusion of the proceeding by making a costs order. Secondly, although the Court will not ordinarily seek to determine the likely outcome of a hypothetical trial, it may be more ready to do so where the issues are simple and issues of credit do not arise. Thirdly, it will ordinarily be appropriate for the Court to consider the reasonableness of the conduct of the parties in instituting and defending the proceedings and it may be appropriate for the Court to consider whether unreasonable conduct of the respondent precipitated the commencement of the proceeding.
Case: Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Outcome: cited
The Bankruptcy Act recognises that the Court may extend the time for compliance with a bankruptcy notice where proceedings to set aside the judgment in respect of which the notice was issued have been instituted by the debtor (s 41(6A)(a)). The power to extend time for compliance is in aid of the power to set aside the notice itself should the judgment ultimately be set aside ( Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 at 268). The judgment upon which the bankruptcy notice was founded has now been set aside. I conclude that Mr George Elias acted reasonably in instituting this proceeding. 15 The trustee was entitled to serve the bankruptcy notice as no stay of execution of the District Court judgment had been sought (s 40(1)(g) of the Bankruptcy Act ). I am not satisfied that he acted unreasonably in doing so. However, he must be assumed to have understood that, if the judgment were set aside on appeal, the judgment debt on which the bankruptcy notice was founded would no longer exist and the notice would be liable to be set aside. 16 The judgment of the Court of Appeal setting aside the judgment of the District Court was unanimous. One member of the Court of Appeal was implicitly critical of the conduct of the trustee in opposing a stay of proceedings in the District Court to allow the s 139ZQ notice to be challenged in the Federal Magistrates Court (Giles JA at [51]). Another member of the Court of Appeal considered that there was 'some plausibility' in the contention that the District Court proceeding should have been stayed but found it unnecessary to consider the issue (Santow JA at [111]). The third member (Bryson JA) of the Court of Appeal also found it unnecessary to consider the issue. However, all members of the Court of Appeal concluded that the District Court erred in entering summary judgment against Mr George Elias. I infer that the District Court adopted this course at the invitation of the trustee. I incline to the view that, in this sense, unreasonable conduct of the trustee precipitated the events that led to the institution of this proceeding.
Case: Elias v Pascoe [2006] NSWCA 110
Outcome: referred to
On 9 May 2006 the New South Wales Court of Appeal granted Mr George Elias leave to appeal against the judgment of the District Court, allowed the appeal and set aside the judgment ( Elias v Pascoe [2006] NSWCA 110).