mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sartas No 1 Pty Ltd v Koukourou &amp; Partners Pty Ltd (1994) 30 IPR 479
Outcome: followed
It is well established that the claims contained in the specification set out the legal limits of the monopoly. Yet, when construing the claims and determining the nature and extent of this monopoly it is necessary to consider the context in which the claims are made. This requires a consideration of the specification as a whole even if there is no apparent ambiguity in the claim; Minnesota Mining &amp; Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 (' Minnesota Mining ') at 267-272; D&eacute;cor at 410-411; Beltreco at [75]-[78]. The specification is made up of several parts which have different functions: Welch Perrin &amp; Co Pty Ltd v Worrel [1960] HCA 91 ; (1961) 106 CLR 588 (' Welch Perrin ') at 610; D&eacute;cor at 391, 398; Beltreco at [73]. Nevertheless, reference to it as a whole may explain or elucidate the background to the claims, assist in ascertaining the meaning of a technical term or in resolving ambiguities in the construction of claims: Martin v Scribal Pty Ltd [1954] HCA 48 ; (1954) 92 CLR 17 (' Martin ') per Taylor J at 97; Welch Perrin at 610-611; Electric &amp; Musical Industries Ltd v Lissen Ltd (1939) 56 RPC 23 (' Electric &amp; Musical Industries ') at 41-42, Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 (' Interlego ') at 478-479; D&eacute;cor at 400; Sartas No 1 Pty Ltd v Koukourou &amp; Partners Pty Ltd (1994) 30 IPR 479 (' Sartas ') at 486; Beltreco at [75].
Case: Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577
Outcome: followed
The hypothetical addressee of the patent specification is the non-inventive person skilled in the art before the priority date: Welch Perrin at 610; Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 (' Populin ') at 476-477; Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 260; D&eacute;cor at 397; Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577 at 582-583; Beltreco at [81]; Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [24] ; Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd (2004) 61 IPR 442 at [113]; Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 496; NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd (1993) 26 IPR 513 (' NV Philips ') at 531; Catnic at 225; Wheatley (Davina) v Drillsafe Ltd [2001] RPC 7 at 141 142. Thus, the words used in a specification are to be given the meaning that the hypothetical addressee would attach to them, both in the light of his or her own general knowledge and what is disclosed in the body of the specification: D&eacute;cor at 391; Photocure at [170].
Case: Wheatley (Davina) v Drillsafe Ltd [2001] RPC 7
Outcome: followed
The hypothetical addressee of the patent specification is the non-inventive person skilled in the art before the priority date: Welch Perrin at 610; Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 (' Populin ') at 476-477; Fisher &amp; Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 260; D&eacute;cor at 397; Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577 at 582-583; Beltreco at [81]; Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8 ; (2001) 207 CLR 1 at [24] ; Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd (2004) 61 IPR 442 at [113]; Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 496; NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd (1993) 26 IPR 513 (' NV Philips ') at 531; Catnic at 225; Wheatley (Davina) v Drillsafe Ltd [2001] RPC 7 at 141 142. Thus, the words used in a specification are to be given the meaning that the hypothetical addressee would attach to them, both in the light of his or her own general knowledge and what is disclosed in the body of the specification: D&eacute;cor at 391; Photocure at [170].
Case: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: cited
s 269ZHF(5) required the CEO to give reasons for any recommendation it is possible to analyse whether the CEO performed the statutory function of making the recommendation for continuation of the measures against Siam in accordance with the Act. The Minister declared in the notice that he gave under s 269ZHG(1) that he had accepted the CEO's recommendations, reasons and findings. Where a statute requires a decision-maker to arrive at a state of satisfaction as a condition of the exercise of a power, the courts can review whether the power has been exercised according to law: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 Brennan CJ, Toohey, McHugh and Gummow JJ. If the statute requires a decision-maker to be satisfied as to a certain matter or matters before making a decision, the decision can be set aside at common law if it is affected by a jurisdictional error. In instances where matters of opinion or taste or policy are involved, the courts have recognised that it may be very difficult to show that the decision-maker has made a jurisdictional error by misconstruing the applicable test, asking the wrong question, making some other mistake of law, taking into account an extraneous reason or excluding from consideration some factor that should affect the determination: Wu Shan Liang 185 CLR at 275-276; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. Such a decision can also be set aside if a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is established.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
s 269ZHF(5) required the CEO to give reasons for any recommendation it is possible to analyse whether the CEO performed the statutory function of making the recommendation for continuation of the measures against Siam in accordance with the Act. The Minister declared in the notice that he gave under s 269ZHG(1) that he had accepted the CEO's recommendations, reasons and findings. Where a statute requires a decision-maker to arrive at a state of satisfaction as a condition of the exercise of a power, the courts can review whether the power has been exercised according to law: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 Brennan CJ, Toohey, McHugh and Gummow JJ. If the statute requires a decision-maker to be satisfied as to a certain matter or matters before making a decision, the decision can be set aside at common law if it is affected by a jurisdictional error. In instances where matters of opinion or taste or policy are involved, the courts have recognised that it may be very difficult to show that the decision-maker has made a jurisdictional error by misconstruing the applicable test, asking the wrong question, making some other mistake of law, taking into account an extraneous reason or excluding from consideration some factor that should affect the determination: Wu Shan Liang 185 CLR at 275-276; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. Such a decision can also be set aside if a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is established.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
am of opinion that reading Report 137 as a whole, and making allowance for any looseness in language or unhappy phrasing, it does not contain any practical analysis or reasoning process by the CEO or the Minister of what, if any, injury was threatened, on the balance of probabilities, if Siam continued to export the product to Australia at the dumped prices. It was not enough for the CEO and the Minister merely to recite a paraphrase of the test in s 269TAE(2A) but discard it. A person entrusted with a discretion must call his own attention to the matters which he or she is bound to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39; Telstra 107 ALD at 502 [105].
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
s 269ZHF(5) required the CEO to give reasons for any recommendation it is possible to analyse whether the CEO performed the statutory function of making the recommendation for continuation of the measures against Siam in accordance with the Act. The Minister declared in the notice that he gave under s 269ZHG(1) that he had accepted the CEO's recommendations, reasons and findings. Where a statute requires a decision-maker to arrive at a state of satisfaction as a condition of the exercise of a power, the courts can review whether the power has been exercised according to law: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276 Brennan CJ, Toohey, McHugh and Gummow JJ. If the statute requires a decision-maker to be satisfied as to a certain matter or matters before making a decision, the decision can be set aside at common law if it is affected by a jurisdictional error. In instances where matters of opinion or taste or policy are involved, the courts have recognised that it may be very difficult to show that the decision-maker has made a jurisdictional error by misconstruing the applicable test, asking the wrong question, making some other mistake of law, taking into account an extraneous reason or excluding from consideration some factor that should affect the determination: Wu Shan Liang 185 CLR at 275-276; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119. Such a decision can also be set aside if a ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is established.
Case: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100
Outcome: cited
other reason supported the conclusion that the threat of material injury to Qenos would be caused by Siam's dumping (or dumping of Thai exports) alone if the measures were allowed to expire. The material in Report 137 was inadequate to establish that the CEO and the Minister had considered what was shown in confidential appendix 7 as undercutting, in accordance with s 269TAE(2), by not attributing any factor other than dumping as being likely to cause material injury. They took the undercutting itself into account as material establishing the likelihood of a threat of material injury. But, that material begged questions, that were left unanswered, as to why the differences in price appeared and what injury was likely to be caused. Because of this inadequacy, the CEO and the Minister did not, in fact, have sufficient material on which to be satisfied that expiration of the measures would be likely to lead to a threat of material injury to Qenos caused by Siam's dumping: see Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 at 518-519 [180]-[182] where I examined the authorities; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As I said there ( Telstra 107 ALD 502 at 107): "[107] Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 ; 239 ALR 50 ; 97 ALD 274 ; 63 ACSR 404 ; [2007] HCA 44 at [52] ( East Australian Pipeline ) per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline at [102]): [102] ... It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them ..."
Case: Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474
Outcome: applied
other reason supported the conclusion that the threat of material injury to Qenos would be caused by Siam's dumping (or dumping of Thai exports) alone if the measures were allowed to expire. The material in Report 137 was inadequate to establish that the CEO and the Minister had considered what was shown in confidential appendix 7 as undercutting, in accordance with s 269TAE(2), by not attributing any factor other than dumping as being likely to cause material injury. They took the undercutting itself into account as material establishing the likelihood of a threat of material injury. But, that material begged questions, that were left unanswered, as to why the differences in price appeared and what injury was likely to be caused. Because of this inadequacy, the CEO and the Minister did not, in fact, have sufficient material on which to be satisfied that expiration of the measures would be likely to lead to a threat of material injury to Qenos caused by Siam's dumping: see Telstra Corporation Ltd v Australian Competition Consumer Commission (2008) 107 ALD 474 at 518-519 [180]-[182] where I examined the authorities; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 188 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As I said there ( Telstra 107 ALD 502 at 107): "[107] Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 ; 239 ALR 50 ; 97 ALD 274 ; 63 ACSR 404 ; [2007] HCA 44 at [52] ( East Australian Pipeline ) per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed ( East Australian Pipeline at [102]): [102] ... It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them ..." I am of opinion that reading Report 137 as a whole, and making allowance for any looseness in language or unhappy phrasing, it does not contain any practical analysis or reasoning process by the CEO or the Minister of what, if any, injury was threatened, on the balance of probabilities, if Siam continued to export the product to Australia at the dumped prices. It was not enough for the CEO and the Minister merely to recite a paraphrase of the test in s 269TAE(2A) but discard it. A person entrusted with a discretion must call his own attention to the matters which he or she is bound to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39; Telstra 107 ALD at 502 [105].
Case: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45
Outcome: discussed
the formation of the requisite state of satisfaction by the CEO under s 269ZHF(2) is an essential precondition to the Minister being able to exercise his or her power under s 269ZHG(1) to decide whether or not to secure the continuation of the anti-dumping measures. And, the CEO's report under s 269ZHF , including the CEO's satisfaction, findings of fact, particulars of the evidence relied on and reasons to support the recommendations in accordance with s 269ZHF(2) and (5), must be considered by the Minister in arriving at a decision under s 269ZHG(1) , together with any other information he or she considers relevant. The discretion of the Minister in s 269ZHG(1) is expressed in wide terms. Nonetheless, it must be exercised within proper limits as Stephen, Mason, Murphy, Aickin and Wilson JJ explained in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 where they said that: "Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view", to use the words of Dixon J in Browning ((1977) 74 CLR at p 505). In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v Bradbury [1937] HCA 15 ; (1937) 56 CLR 746 at p 758)), "on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power"." Here, the limits of the discretion, are to be found in the subject matter, scope and purpose of Pt XVB of the Act and, in particular, in the requirement of s 269ZHG(1) itself, that the Minister must consider the report of the CEO. In that consideration, the Minister must also consider, as a fundamental matter in exercising his or her discretion, the central finding of the report that, in accordance with s 269ZHF(2) , the CEO was satisfied that the expiration of the measures would lead or be likely to lead to a continuation or recurrence of both the dumping and the material injury that the anti-dumping measure is intended to prevent. Thus, a review under Div 6A of Pt XVB is not intended as a complete replication of the process under Div 3 involved in the initial imposition of anti-dumping measures. But, the continuation review under Div 6A is still directed to the purpose of preventing material injury or the threat of such an injury caused by dumping. So, in exercising his or her discretion under s 269ZHG(1) , I am of opinion that the Minister must consider whether the existing measures are appropriate and adapted to achieve the purpose served by the measures identified in s 269ZHF(2) if they are to be continued.
Case: United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5)
Outcome: discussed
argued that the reasoning in Report 137 recording the CEO's satisfaction as to the matters set out in s 269ZHF(2) was the product of hypothesising about the impact of unknown and undefined future events that bore no causal relationship to the expiry of the measures. Siam contended that, the conclusions in Report 137 that the expiration of the measures would lead or be likely to lead to the occurrence or recurrence of both dumping and material injury, and particularly the likelihood of dumping causing or threatening material injury, were not sufficiently causally connected in a reasoning process in the Report to justify the decision to continue the measures against Siam. Siam argued that the respondents had used speculation rather than a rigorous examination of a kind envisaged by the WTO Appellate Body in United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5) at [111]. The respondents argued that the terms of s 269ZHF(2) were materially similar to Art 11.3 of the implementation agreement. They argued that the considerations identified by Report 137, provided a reasoning process that was open to, and sufficient for, the CEO and the Minister. They referred to the finding in the Report that Siam had continued to dump the product in Australia even while the existing measures were in force, as leaving it open to the CEO and the Minister to conclude that it was likely that such activity would continue if the measures did not remain in place. The respondents accepted that the CEO was not empowered to make a recommendation under s 269ZHF(2) on the mere possibility of dumping or on no more than speculation, but contended that the CEO had had a more solid foundation for the recommendation and had correctly applied the relevant test. The respondents contended that the CEO's conclusion that imports from Thailand actively competed on price with the product produced in Australia was open on the other findings in the Report notwithstanding that Siam's product was of a higher grade than Qenos'. They pointed to the findings that the average price of Thai imports at the end of 2007 was only slightly higher than Qenos' prices, despite Siam's being of a higher quality, and that the removal of duty from 1 January 2008 would only have improved the competitive position of Siam's products, if measures were not in place. They referred to the fact that Report 134 had ascertained a non-injurious price for Siam's products. They also relied on the Report's finding that Siam's product had a degree of substitutability that could cause injury to the Australian industry.
Case: M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1289
Outcome: discussed
The matter was remitted to the Federal Court and heard as proceeding VID 676 of 2002. Following a direction by a Registrar of the Court, on 29 November 2002 the appellants filed an amended application under s 475A of the Migration Act 1958 ("the Act ") and s 39B of the Judiciary Act 1903 . That application, which was heard in the first instance by Sundberg J, alleged that the RRT fell into jurisdictional error by considering out-of-date country information. The appellants' written contentions of fact and law repeated this claim. By a decision delivered 12 November 2003, Sundberg J dismissed the application for review. His Honour said, in M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1289 , at [13] and [16]: "As can be seen, when the Tribunal was considering the applicant's claims as to what happened to her in 1994 and thereafter, it considered information contemporaneous with the times. It would have been irrelevant to consider current information about Sri Lanka in assessing the state of the country after the events were said to have occurred. When it was considering the real chance of persecution on return, it had regard to current information about the country. ... It is to be remembered that the weight to be attributed to country information is a matter for the Tribunal, not for the Court."
Case: MZXEF v Minister for Immigration [2006] FMCA 187
Outcome: referred to
The learned Federal Magistrate found ( MZXEF v Minister for Immigration [2006] FMCA 187 at [14] ): "[T] here is little doubt that in this case the issues now sought to be agitated ... are substantially the same as the issues which had been initially before the primary judge in the first application and in any event, which had been considered by the Full Court of the Federal Court on appeal from that decision. " Accordingly, his Honour found that the doctrine of res judicata applied and that the review application should be summarily dismissed. The Federal Magistrate held, in the alternative, that the application constituted an abuse of process and could also be dismissed on that basis. 12 The notice of appeal was broad and unparticularised. It was, however, accompanied by an affidavit sworn by the first appellant on 17 February 2006. The principal grounds of appeal raised by the appellants appear in this affidavit and in the appellants' written submissions filed on 25 April 2006. These grounds were: (1) that the first appellant was medically unfit to give evidence in support of her application before the RRT and was therefore denied procedural fairness and her rights under s 425 of the Act ; and (2) that the RRT failed to consider up-to-date country information. 13 On the hearing of the appeal, the first appellant reiterated both grounds and gave the Court copies of a document containing recent information on the situation in Sri Lanka.