mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) FCAFC 220
Outcome: cited
I have already noted, the applicant is the registered proprietor of a patent which has been certified and remains in force. In order to establish infringement of the patent, the applicant must show that the respondent has taken each and every one of the essential integers of the relevant claims. This principle was considered by the Full Court in Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) FCAFC 220 at par 49 where their Honours said, referring to the earlier Full Court decision in Populin v HB Nominees Pty Ltd (1982) 59 FLR 37: 'There is no infringement if the patentee has, by the form of the claim, left open what the alleged infringer has done. Their Honours [in Populin] stated, as a fundamental rule, the test for infringement as set out in Rodi &amp; Wienenbirger AG v Henry Showell Ltd [1969] RPC 367 that there will be no infringement unless the alleged infringer has taken all of the essential features or integers of the patentee's claim. This principle was reaffirmed by Gummow J in Nicaro Holdings v Martin Engineering (1990) 91 ALR 513 at 527 (par 49).'
Case: Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218
Outcome: applied
Federal Court has power to grant interlocutory relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and s 122(1) Patents Act 1990 (Cth). The principles relevant to the exercise of that power are: 1. There must be a serious question to be tried or a prima facie such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. The applicant will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. The balance of convenience favours the granting of an injunction. ( Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 ; Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675 , and Castlemaine Tooheys v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at 153.)
Case: Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675
Outcome: applied
Federal Court has power to grant interlocutory relief pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and s 122(1) Patents Act 1990 (Cth). The principles relevant to the exercise of that power are: 1. There must be a serious question to be tried or a prima facie such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. The applicant will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. The balance of convenience favours the granting of an injunction. ( Hexall Australia Pty Ltd v Roche Therapeutics Inc [2005] FCA 1218 ; Pharmacia Italia SPA v Interpharma Pty Ltd [2005] FCA 1675 , and Castlemaine Tooheys v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at 153.)
Case: Populin v HB Nominees Pty Ltd (1982) 59 FLR 37
Outcome: cited
I have already noted, the applicant is the registered proprietor of a patent which has been certified and remains in force. In order to establish infringement of the patent, the applicant must show that the respondent has taken each and every one of the essential integers of the relevant claims. This principle was considered by the Full Court in Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) FCAFC 220 at par 49 where their Honours said, referring to the earlier Full Court decision in Populin v HB Nominees Pty Ltd (1982) 59 FLR 37: 'There is no infringement if the patentee has, by the form of the claim, left open what the alleged infringer has done. Their Honours [in Populin] stated, as a fundamental rule, the test for infringement as set out in Rodi &amp; Wienenbirger AG v Henry Showell Ltd [1969] RPC 367 that there will be no infringement unless the alleged infringer has taken all of the essential features or integers of the patentee's claim. This principle was reaffirmed by Gummow J in Nicaro Holdings v Martin Engineering (1990) 91 ALR 513 at 527 (par 49).'
Case: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873
Outcome: considered
of the administration of justice is one thing; the ability freely to inspect every document on the Court's file is another. So much is evident from the structure of O 46 r 6. Rule 6(2) lists out those types of document which may be inspected as of right with r 6(3) then providing that the ability to inspect other types of document requires a grant of leave. As to the latter, while there may be a general disposition to permit a non-party to have access to such non-confidential affidavits and exhibits as are admitted into evidence: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 148 FCR 1 , at [26], the extent of further access must in each case be considered on its merits. That is so even in relation to material read in open court or referred to by a judge: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873 at [7]. One factor which can be relevant to the withholding of access is the approach adopted by the parties to objections to evidence.
Case: R v Davis [1995] FCA 1321 ; (1995) 57 FCR 512
Outcome: followed
public administration of justice and the consequent ability for the public freely to observe it and for the media readily to report it is a safeguard against the abuse of the very considerable authority entailed in the exercise of the judicial power of the Commonwealth: R v Davis [1995] FCA 1321 ; (1995) 57 FCR 512 at 514.
Case: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 148 FCR 1
Outcome: considered
of the administration of justice is one thing; the ability freely to inspect every document on the Court's file is another. So much is evident from the structure of O 46 r 6. Rule 6(2) lists out those types of document which may be inspected as of right with r 6(3) then providing that the ability to inspect other types of document requires a grant of leave. As to the latter, while there may be a general disposition to permit a non-party to have access to such non-confidential affidavits and exhibits as are admitted into evidence: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 148 FCR 1 , at [26], the extent of further access must in each case be considered on its merits. That is so even in relation to material read in open court or referred to by a judge: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873 at [7]. One factor which can be relevant to the withholding of access is the approach adopted by the parties to objections to evidence.
Case: Moran v Lydiard Financial Services Pty Ltd [2005] FMCA 1821
Outcome: referred to
This is an appeal from a judgment of the Federal Magistrates Court (Phipps FM): Moran v Lydiard Financial Services Pty Ltd [2005] FMCA 1821. In hearing and determining the appeal, I am exercising the powers of the Full Court pursuant to a determination by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 Phipps FM dismissed the appellant's application to set aside a bankruptcy notice served on him by the respondent. Before the Magistrate, the appellant put forward three bases for the setting aside of the notice. 3 The first basis was that the notice was based on a debt that had been paid. 24 Leaving aside the gratuitous insult in ground (h), the Magistrate was hardly obliged to deal with an issue that was not raised before him. It follows that I also do not need to deal with it. Grounds (b) and (h) must fail. In any case, I agree with what Hayne J said to the appellant about the issue in Moran v Lydiard Financial Services Pty Ltd [2004] HCATrans 562: "These arguments are variants on arguments that have sometimes been put in the Court. They are arguments that always end up proving far too much, Mr Moran, as they are arguments that, if they had any legs which they do not it would demonstrate that there was no ownership of land, there was no Corporations Law, and the arguments of a kind commonly deployed to demonstrate that somebody does not owe taxation. It always proved too much." 25 Ground of appeal (c) relates to the note. It must also fail. 26 The Magistrate said at [5] that: "A promissory note does not constitute payment for costs, It was returned by [solicitors for the respondent] by return mail in which they said it did not constitute legal tender. A promissory note cannot constitute payment in the absence of acceptance of the promissory note or agreement that payment is to be made by promissory note. Neither of those two things exist here. In addition, there is no evidence of an ability to satisfy the promissory note. Finally, it needs to be said, the order for costs made by the Court of Appeal contained no stay, nor did the Master's order fixing the amount of the costs. The promissory note, on its face, is payable at 4pm on 31 January 2025. ..."
Case: Bhagat v Global Custodians Ltd [2002] FCA 223
Outcome: cited
According to the appellant, grounds of appeal (a) and (g) fix on what the Magistrate said at [15] and [16]: "[The appellant] is seeking to satisfy the Court that he has a counter-claim, set-off or cross-demand as those terms are used in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). It is not sufficient for a debtor to assert that he has a claim and then set out the basis for the claim. He must satisfy the Court that he has a genuine demand. The Court must be satisfied it has a reasonable prospect of success. I refer to Bhagat v Global Custodians Ltd [2002] FCA 223 at [52] as one of the authorities for that proposition. The debtor must show that he has a prima face case even if he does not adduce the admissible evidence which would make out a prima facie case (Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 at 350). The [appellant] does not show that he has a claim to pursue. He has attempted to establish a claim in the Supreme Court of Victoria and the proceeding has been dismissed. He has lodged an appeal against the decision of Mandie J, but that does not establish that his claim has any merit or any prospects of success, whether he has a prima facie case or a reasonable prospect of success." As noted at [6], the appeal against the decision of Mandie J is stayed pending the provision of security for costs. 12 Ground of appeal (a) is misconceived. The Magistrate did not "assume the outcome of [that] appeal". He did what the authorities (ie Bhagat and Ebert ) called upon him to do: namely, make an assessment solely for the purposes of the application before him of the prospects of success of the appeal. In making that assessment, he did not purport to decide the outcome of that appeal: the Court of Appeal is not bound to agree with that assessment if and when it comes to decide the appeal. Further, the Magistrate could only have made that assessment on the basis of "submissions and affidavit material".
Case: Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346
Outcome: cited
According to the appellant, grounds of appeal (a) and (g) fix on what the Magistrate said at [15] and [16]: "[The appellant] is seeking to satisfy the Court that he has a counter-claim, set-off or cross-demand as those terms are used in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). It is not sufficient for a debtor to assert that he has a claim and then set out the basis for the claim. He must satisfy the Court that he has a genuine demand. The Court must be satisfied it has a reasonable prospect of success. I refer to Bhagat v Global Custodians Ltd [2002] FCA 223 at [52] as one of the authorities for that proposition. The debtor must show that he has a prima face case even if he does not adduce the admissible evidence which would make out a prima facie case (Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 at 350). The [appellant] does not show that he has a claim to pursue. He has attempted to establish a claim in the Supreme Court of Victoria and the proceeding has been dismissed. He has lodged an appeal against the decision of Mandie J, but that does not establish that his claim has any merit or any prospects of success, whether he has a prima facie case or a reasonable prospect of success." As noted at [6], the appeal against the decision of Mandie J is stayed pending the provision of security for costs. 12 Ground of appeal (a) is misconceived. The Magistrate did not "assume the outcome of [that] appeal". He did what the authorities (ie Bhagat and Ebert ) called upon him to do: namely, make an assessment solely for the purposes of the application before him of the prospects of success of the appeal. In making that assessment, he did not purport to decide the outcome of that appeal: the Court of Appeal is not bound to agree with that assessment if and when it comes to decide the appeal. Further, the Magistrate could only have made that assessment on the basis of "submissions and affidavit material".
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
As to the first proposition set out at [14], the appellant contends that the Magistrate cannot exercise the jurisdiction of a state court. (Presumably, that contention is made in reliance on Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511.) However, the Magistrate did not purport to do that. All he did was record as part of the task described at [12] what Master Evans had said about the claim. In so doing, he referred to an affidavit of Robert McGirr of solicitors for the respondent which reference is the subject of the second proposition set out at [14]. However, the appellant relied on Mr McGirr's affidavit before the Magistrate having exhibited it to an affidavit of his own. It does not lie in the appellant's mouth to now complain that Mr McGirr's affidavit was used against him even if he only intended to rely on it in some respects and not others. 17 Grounds of appeal (e) and (f) relate to the substance of the claim which the Magistrate described at [8] to [11]. 18 According to the appellant, ground of appeal (e) fixes on what the Magistrate said in the last sentence at [12]: "The only avenue open to [the appellant] was as a lessee, but that would only be if his lease was granted with the approval of the first mortgagee, which it was not." The appellant complains that this amounts to a ruling on a crucial issue in the claim: namely, who was the first mortgagee of a property located at Clarkes Hill that was sold by the respondent.
Case: Ex parte Matthew; Re Matthew (1884) 12 QBD 506
Outcome: distinguished
The appellant relies on the following passage in PP McQuade and MGR Gronow, McDonald , Henry and Meek: Bankruptcy Law and Practice (5 th edn, 1996) at [40.1.335]: "A creditor who, after he or she has served a bankruptcy notice, takes from the debtor a bill of exchange or promissory note for the debt, cannot, during the currency of the bill or the note, obtain a sequestration order founded on the notice, since, until the bill or note is dishonoured, it must be treated as payment (Ex parte Matthew; Re Matthew (1884) 12 QBD 506) and the position is the same, if, although dishonoured, it is in the hands of a third person to whom it has been endorsed for value by the creditor: Re Debtor [1908] 1 KB 344." That passage does not assist the appellant. It assumes that the creditor has accepted the note. That the author uses the word "take" in that sense is made clear when one reads the two cases to which he refers. In each of those cases, the note had been accepted. For the same reason, each of those cases can be distinguished from the instant case.
Case: Re Debtor [1908] 1 KB 344
Outcome: distinguished
The appellant relies on the following passage in PP McQuade and MGR Gronow, McDonald , Henry and Meek: Bankruptcy Law and Practice (5 th edn, 1996) at [40.1.335]: "A creditor who, after he or she has served a bankruptcy notice, takes from the debtor a bill of exchange or promissory note for the debt, cannot, during the currency of the bill or the note, obtain a sequestration order founded on the notice, since, until the bill or note is dishonoured, it must be treated as payment (Ex parte Matthew; Re Matthew (1884) 12 QBD 506) and the position is the same, if, although dishonoured, it is in the hands of a third person to whom it has been endorsed for value by the creditor: Re Debtor [1908] 1 KB 344." That passage does not assist the appellant. It assumes that the creditor has accepted the note. That the author uses the word "take" in that sense is made clear when one reads the two cases to which he refers. In each of those cases, the note had been accepted. For the same reason, each of those cases can be distinguished from the instant case.
Case: Aboriginal Legal Service of Western Australia Inc v Lawrence [2007] WAIRC 435
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191.
Case: Bank of New South Wales v Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1
Outcome: followed
In Bank of New South Wales v Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 , Dixon J said, at 381: It has been said that "trade" strictly means the buying and selling of goods. That, however, is a specialized meaning of the word. The present primary meaning is much wider, covering as it does the pursuit of a calling or handicraft, and its history emphasizes rather use, regularity and course of conduct, than concern with commodities. 132 Counsel for the Etheridge Shire Council submitted the activities of the council in the following areas, constituted trading: Operation of the Terrestrial Centre. [The Terrestrial Centre is described as "a visiting information centre and tourism facility which displays the Ted Elliott mineral collection". It is operated as a tourist attraction in the shire.] Road works for the Department of Works . [It may be recalled that Section 36 of the LGA provides that local governments in Queensland may enter into contracts and charge for services at facilities it supplies, and s 29 of the Transport Infrastructure Act 1994 provides that the Chief Executive of Main Roads may enter into contracts for the State of Queensland with other persons, including local governments, for the carrying out of road works on a state controlled road.] 133 Mr K. Watson of Counsel, for the Etheridge Shire Council, submitted as his primary submission that, as at 21 October 2006, these activities together with "the receipt of investment income" either alone, or some, or all in combination, were significant or substantial trading and financial activities of the Etheridge Shire Council, and with the consequence that the Etheridge Shire Council was an "employer" pursuant to s 6 of the WRA.
Case: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.
Case: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191.
Case: Forbes &amp; Anor v Australian Yachting Federation Inc (1996) 131 FLR 241
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191.