mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451
Outcome: considered
was submitted on behalf of the Conservation Council that the manner in which the return of the subpoena had been ordered in the Documents for Subpoena document, insofar as categorisation and tabulation was concerned, engaged with particular observations which I made, by reference to, in turn, to observations made particularly by Pincus J in Interchase Corporation Limited (in Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141 (Interchase), in my judgment in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451 (Granitgard), at particularly para 28.
Case: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510
Outcome: cited
A few additional words should be said in relation to the Applicant's argument under reg 20.3(3)(a)(i). The Respondent accepts that he did not consider the Applicant's registration under reg 20.3(3)(a)(i). That is not surprising. He was not asked to do so. The fact that the Applicant did not ask to be registered under reg 20.3(3)(a)(i) undermines his assignment of error at both the administrative and judicial review levels. With respect to the administrative level, the rule is that the decision-maker is not obligated to make a party's case for them: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [187] . The Applicant acknowledges this rule but submits that he did make his case in his application for registration that he had "been employed as required by paragraph 198(4)(c) of the [1990 Patents] Act." I do not accept that this general statement was sufficient to put the Respondent on notice that the Applicant was making a case under reg 20.3(3)(a)(i). I also do not accept the Applicant's submission that the "Respondent is required at law to consider each of the provisions of 20.3(3) before he can find that a person does not satisfy them." In the absence of evidence or materials that would clearly put an administrative decision-maker on notice of an unarticulated claim, there is no affirmative burden on the decision-maker to scour the papers and the legislation sua sponte to see if there is a basis on which a party's case may succeed: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] - [60] ; Hill v Repatriation Commission (2005) 218 ALR 251 at [105]-[107]. I am satisfied that neither the Applicant's general statements that he had met the employment qualification nor any of the supporting materials he filed with the Respondent were such as to squarely raise his current claim that he was employed as his own (or anyone else's) technical assistant.
Case: Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398
Outcome: cited
Nevertheless, the purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation ( Saraswati [1991] HCA 21 ; 172 CLR 1 at 22), ... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies[.] See also SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 at [44] - [45] (noting that where a party contends that a provision should not be given its literal or plain meaning, such a contention may lack force absent a plausible competing construction). The only exception to this rule is where the ordinary meaning would lead not just to an anomaly, but to a result that is "manifestly absurd" or "unreasonable": Saraswati [1991] HCA 21 ; 172 CLR 1 at 22; see also Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398 at [23].
Case: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: cited
With respect to the Applicant's attempt to agitate the reg 20.3(3)(a)(i) argument in this Court, "[i]t is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law": SZIGW v Minister for Immigration and Citizenship [2007] FCA 203 at [13] (citations omitted; emphasis added); see also Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (stating that failure to timely raise a point may be deemed waiver of that point). In the instant case, it is at best questionable whether all of the relevant facts that would establish beyond controversy that the Applicant has been employed as a technical assistant are before the Court. In particular, the record does not disclose that the Applicant has ever drafted a patent specification or prosecuted a patent (which is not surprising, given that evidence to that effect might also suggest that the Applicant had committed an offence under s 202 of the 1990 Patents Act ): cf Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141 at [31] (suggesting that a "technical assista nt" is one who has the duty of prosecuting patent applications on behalf of clients, under the supervision of a registered patent attorney). Even accepting the Applicant's statutory declaration at face value, it states only that he has "liaised with patent attorneys in relation to the preparation and filing of patent specifications on behalf of [his] clients." Accordingly, the Applicant's claim under reg 20.3(3)(a)(i) would ordinarily fail at the outset both because it was not clearly raised below and because not all of the facts necessary to make good the point have been established beyond controversy.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: applied
None of the considerations raised by the Applicant demonstrated that the decision of the Respondent was invalid. Many of the considerations raised by the Applicant were, in fact, an attack on the merits of the decision and were in relation to facts and matters about which the Respondent and the Applicant held different views. Further, each of the first three matters was addressed and dismissed in relation to the allegation of a denial of natural justice or a lack of procedural fairness. With respect to the fourth matter, it is well settled that the expression of a tentative conclusion without more will not support a claim of apprehended bias; a decision-maker "may form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them": Johnson v Johnson (2000) 201 CLR 488 at [13] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Here, the Respondent expressed his tentative opinion to the Applicant in his letter of 9 August 2007 and expressly gave the Applicant an opportunity to respond. After reviewing the Applicant's response, which presumably was assisted and focused by knowledge of the Respondent's tentative opinion, the Respondent then made his decision. Under these circumstances, I do not consider that "a fair-minded lay observer might [have] reasonably apprehend[ed] that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] [wa]s required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 (per Gleeson CJ, McHugh, Gummow and Hayne JJ) .
Case: Eli Lilly &amp; Company v Pfizer Ireland Pharmaceuticals (No 2) [2004] FCA 850 ; (2004) 137 FCR 573
Outcome: cited
The Applicant placed considerable emphasis on the absence of the word "registered" in reg 20.3(3)(a)(i). As the Respondent submitted, the omission is "curious". However, the omission does not assist the Applicant for at least two reasons. First, as Heerey J noted in Eli Lilly &amp; Company v Pfizer Ireland Pharmaceuticals (No 2) [2004] FCA 850 ; (2004) 137 FCR 573 at [8] , "registered patent attorneys" in s 200(2) of the 1990 Patents Act means registered in Australia. If that is correct (and it was not suggested that his Honour was wrong), the practical effect of the omission may be no more than a recognition that applicants who have worked overseas as a technical assistant for a patent attorney who is not registered under the 1990 Patents Act , may still satisfy the employment requirement of reg 20.3(3)(a)(i). Secondly, even if it were accepted that reg 20.3(3)(a)(i) is not referring to a registered patent attorney (a submission I do not accept), the Applicant would have to demonstrate that he has been employed as a technical assistant in the practice of a patent attorney, practicing as a patent attorney within the meaning of s 201 of the 1990 Patents Act . As a matter of ordinary English syntax, one cannot be employed as an assistant to oneself; thus the Applicant cannot satisfy the criterion of having been employed as a technical assistant in a patent attorney's practice.
Case: Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300
Outcome: discussed
In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 , reversed on other grounds by Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , Burchett J (at 317) accepted the definition of natural justice to be commensurate with the statement of principle in Butterworths Legal Dictionary (ed Nygh P, and Butt, P): The right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have the decision based on logically probative evidence. ... 69 The Applicant did not seek to submit that the current circumstances (or any other feature of the matter) founded a case of actual bias. The Amended Application merely asserted apprehended bias. In fact, the Applicant sought, impermissibly, to use this ground to re-agitate the merits of the decision by reference to four matters: (1) that relevant documents were allegedly destroyed; (2) the manner in which the Applicant was described in documents by the Acting Secretary to lack credibility or have a credibility gap (without being given the opportunity to respond) and to have "strayed" into the field of patents; (3) that the Respondent's decision was described by the Acting Secretary as "judicially excellent" and (4) that the decision-maker had expressly made his thoughts known about the operation of reg 20.3(3)(a)(ii).
Case: Hill v Repatriation Commission (2005) 218 ALR 251
Outcome: cited
A few additional words should be said in relation to the Applicant's argument under reg 20.3(3)(a)(i). The Respondent accepts that he did not consider the Applicant's registration under reg 20.3(3)(a)(i). That is not surprising. He was not asked to do so. The fact that the Applicant did not ask to be registered under reg 20.3(3)(a)(i) undermines his assignment of error at both the administrative and judicial review levels. With respect to the administrative level, the rule is that the decision-maker is not obligated to make a party's case for them: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [187] . The Applicant acknowledges this rule but submits that he did make his case in his application for registration that he had "been employed as required by paragraph 198(4)(c) of the [1990 Patents] Act." I do not accept that this general statement was sufficient to put the Respondent on notice that the Applicant was making a case under reg 20.3(3)(a)(i). I also do not accept the Applicant's submission that the "Respondent is required at law to consider each of the provisions of 20.3(3) before he can find that a person does not satisfy them." In the absence of evidence or materials that would clearly put an administrative decision-maker on notice of an unarticulated claim, there is no affirmative burden on the decision-maker to scour the papers and the legislation sua sponte to see if there is a basis on which a party's case may succeed: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] - [60] ; Hill v Repatriation Commission (2005) 218 ALR 251 at [105]-[107]. I am satisfied that neither the Applicant's general statements that he had met the employment qualification nor any of the supporting materials he filed with the Respondent were such as to squarely raise his current claim that he was employed as his own (or anyone else's) technical assistant.
Case: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141
Outcome: cited
With respect to the Applicant's attempt to agitate the reg 20.3(3)(a)(i) argument in this Court, "[i]t is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law": SZIGW v Minister for Immigration and Citizenship [2007] FCA 203 at [13] (citations omitted; emphasis added); see also Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (stating that failure to timely raise a point may be deemed waiver of that point). In the instant case, it is at best questionable whether all of the relevant facts that would establish beyond controversy that the Applicant has been employed as a technical assistant are before the Court. In particular, the record does not disclose that the Applicant has ever drafted a patent specification or prosecuted a patent (which is not surprising, given that evidence to that effect might also suggest that the Applicant had committed an offence under s 202 of the 1990 Patents Act ): cf Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141 at [31] (suggesting that a "technical assista nt" is one who has the duty of prosecuting patent applications on behalf of clients, under the supervision of a registered patent attorney). Even accepting the Applicant's statutory declaration at face value, it states only that he has "liaised with patent attorneys in relation to the preparation and filing of patent specifications on behalf of [his] clients." Accordingly, the Applicant's claim under reg 20.3(3)(a)(i) would ordinarily fail at the outset both because it was not clearly raised below and because not all of the facts necessary to make good the point have been established beyond controversy.
Case: Johnson v Johnson (2000) 201 CLR 488
Outcome: cited
None of the considerations raised by the Applicant demonstrated that the decision of the Respondent was invalid. Many of the considerations raised by the Applicant were, in fact, an attack on the merits of the decision and were in relation to facts and matters about which the Respondent and the Applicant held different views. Further, each of the first three matters was addressed and dismissed in relation to the allegation of a denial of natural justice or a lack of procedural fairness. With respect to the fourth matter, it is well settled that the expression of a tentative conclusion without more will not support a claim of apprehended bias; a decision-maker "may form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them": Johnson v Johnson (2000) 201 CLR 488 at [13] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Here, the Respondent expressed his tentative opinion to the Applicant in his letter of 9 August 2007 and expressly gave the Applicant an opportunity to respond. After reviewing the Applicant's response, which presumably was assisted and focused by knowledge of the Respondent's tentative opinion, the Respondent then made his decision. Under these circumstances, I do not consider that "a fair-minded lay observer might [have] reasonably apprehend[ed] that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] [wa]s required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 (per Gleeson CJ, McHugh, Gummow and Hayne JJ) .
Case: Kowalski v Domestic Violence Crisis Centre Inc [2001] FCA 1082 ; (2001) 113 FCR 67
Outcome: cited
I cannot accept such a construction. It is true that s 15AA of the Acts Interpretation Act 1901 (Cth) directs a court to prefer a construction promoting the purpose or object of an Act. It is also true that patent textual ambiguity is not required in order to consult purpose (ie reference to purpose may be had both to raise as well as to resolve ambiguity): Saraswati v Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 22; see also Kowalski v Domestic Violence Crisis Centre Inc [2001] FCA 1082 ; (2001) 113 FCR 67 at [23] .
Case: Macleod v Queen [2003] HCA 24 ; (2003) 214 CLR 230
Outcome: cited
The Applicant contended that the reference to "in a company" should not be read literally but should be extended to include employment " in a company or a firm" . The Respondent adopted that construction in par 5.8 of his reasons for decision (see [7] above). I do not accept that references in reg 20.3(3)(a)(ii) to "company" should be read in that manner. A law firm, other than an incorporated legal practice, is not a company within the meaning of the Corporations Act ": see ss 9 and 119 (stating that a company means a company registered under the Corporations Act and comes into existence as a body corporate on the day of registration); Legal Profession Act 2004 (Vic) ss 2.7.2 and 2.7.4 (stating that an incorporated legal practice is a company within the meaning of the Corporations Act ). The Applicant accepted that his firm is not registered under the Corporations Act . Moreover, even assuming that the definition found in the Corporations Act should not be interpolated into reg 20.3(3)(a)(ii), the ordinary common law understanding of company would not assist the Applicant either: Macleod v Queen [2003] HCA 24 ; (2003) 214 CLR 230 at [28] (stating that the essential meaning of "company" since the time of Salomon's Case , has been as a body with a separate legal identity); see also Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525 at [3] - [4] (observing the historical distinction, dating back to Salomon's Case , between firms (partnerships) and companies (corporations)); Salomon v Salomon &amp; Co Ltd [1897] AC 22. Again, the Applicant presented no evidence that White SW Computer Law is a distinct legal entity as opposed to an unincorporated sole proprietorship.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
Finally, a number of the Applicant's allegations proceeded on the basis that the Respondent was under an obligation to provide the Applicant with an opportunity to comment on documents (specifically, memoranda from the Acting Secretary of the Professional Standards Board for Patent and Trade Marks Attorneys dated 4 October and 11 October 2007) which contain no more than opinions on, or rejections of, the Applicant's material. That premise is wrong. An applicant in an administrative context is entitled to comment only on adverse information that is "credible, relevant and significant": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 88-90 and VEAL [2005] HCA 72 ; 225 CLR 88 at [15] and [17]. "Credible, relevant and significant" material is "information that cannot be dismissed from further consideration by the decision-maker before making the decision": VEAL [2005] HCA 72 ; 225 CLR 88 at [17] . As the Respondent's letters of 9 August 2007, 10 and 11 October 2007, and 22 November 2007 demonstrate, the Respondent took the consistent view that the Applicant did not satisfy the requirements of reg 20.3(3)(a) based on a plain reading of the regulation. There is no evidence that the Respondent could not or did not dismiss from further consideration the Acting Secretary's opinions of the Applicant's material, given that his 11 October 2007 rejection of the Applicant's application was for the same reason as his 9 August 2007 tentative rejection - namely, that even accepting that all of the material provided by the Applicant was true and correct, the Applicant failed as a matter of law to satisfy the requirements of reg 20.3(3)(a) - and did not turn on any credibility or evidentiary issues. That the Respondent had already tentatively reached that view before ever receiving the October memoranda from the Acting Secretary conclusively demonstrates that the memoranda played no part, much less a significant one, in the Respondent's consideration or decision.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: cited
No decision was made to register the Applicant on 7 August 2007 because it is clear from the face of the document that the Respondent was directing only that the three persons whose names were ticked be registered while the two persons without ticks were not to be registered due to the handwritten reasons. However, even if a "decision" had been made (and it had not), the Applicant would be in no better position because the Applicant did not satisfy reg 20.3(3)(a). Any "decision" would have been a "decision" in error and without legal foundation. Accordingly, the Respondent would not have been prevented from making a later decision: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], [52] and [54]. 67 This ground of review is also without foundation.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
A few additional words should be said in relation to the Applicant's argument under reg 20.3(3)(a)(i). The Respondent accepts that he did not consider the Applicant's registration under reg 20.3(3)(a)(i). That is not surprising. He was not asked to do so. The fact that the Applicant did not ask to be registered under reg 20.3(3)(a)(i) undermines his assignment of error at both the administrative and judicial review levels. With respect to the administrative level, the rule is that the decision-maker is not obligated to make a party's case for them: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [187] . The Applicant acknowledges this rule but submits that he did make his case in his application for registration that he had "been employed as required by paragraph 198(4)(c) of the [1990 Patents] Act." I do not accept that this general statement was sufficient to put the Respondent on notice that the Applicant was making a case under reg 20.3(3)(a)(i). I also do not accept the Applicant's submission that the "Respondent is required at law to consider each of the provisions of 20.3(3) before he can find that a person does not satisfy them." In the absence of evidence or materials that would clearly put an administrative decision-maker on notice of an unarticulated claim, there is no affirmative burden on the decision-maker to scour the papers and the legislation sua sponte to see if there is a basis on which a party's case may succeed: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] - [60] ; Hill v Repatriation Commission (2005) 218 ALR 251 at [105]-[107]. I am satisfied that neither the Applicant's general statements that he had met the employment qualification nor any of the supporting materials he filed with the Respondent were such as to squarely raise his current claim that he was employed as his own (or anyone else's) technical assistant.