mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Watt v R [2000] NSWCCA 37
Outcome: cited
Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that s 87(1)(c) of the Evidence Act 1995 (NSW) (which is in the same form as s 87(1)(c) of the Evidence Act ) reproduces the pre-existing common law. See R v Macraild (unreported, NSW Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997) at 9 and Watt v R [2000] NSWCCA 37 at [8] . The pre-existing common law is found in Tripodi v R [1961] HCA 22 ; (1961) 104 CLR 1 at 7 and Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87 at 100. In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were 'reasonable evidence' establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as the New South Wales Court of Criminal Appeals appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' preferred by the legislature. For present purposes, however, Macraild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of s 87(1)(c) of the Evidence Act , Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that s 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: considered
I note that in [36] of the Tribunal's reasons there is material that was not submitted for the purposes of the review, within the meaning of the authorities, especially SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. 16 Dissatisfied with this result, the appellant applied to this Court for judicial review by an application filed on 19 June 2003. The grounds for review in the application made to the Court on that occasion did not assert that the appellant had been aggrieved by the failure of the Tribunal to hear him give evidence. The grounds of review asserted, relevantly, that the Tribunal had affirmed the decision of the Department, the appellant was aggrieved by that; the Tribunal had failed to take into consideration the merits of the case; it had failed to act on proper principles of fairness and natural justice and it did not act in good faith to make the decision. 17 Grounds for those contentions were set out as being: the decision made by the Tribunal was an improper exercise of the powers conferred by the Act and the regulations and it involved an error of law, being an incorrect interpretation of the applicable laws and the incorrect application of the law to the facts. The application did not get any more specific than that. 31 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs , [2006] FCAFC 2 Allsop J at [233], with whom Weinberg J agreed at [155], said that if it could be shown that a reason given by the Tribunal for affirming the decision under review which failed to follow the procedure mandated by section 424A was entirely independent of another basis which did not fall foul of any jurisdictional error, the independent basis could support the decision under review notwithstanding the other jurisdictional error. 32 The appellant also argued to his Honour that he had not been given an opportunity to give evidence at the hearing before the Tribunal. His Honour concluded that it was open to the Tribunal to refuse the request for the adjournment that had been made by Mr Sardar and, inter alia, adopted the opinion expressed by McHugh and Heydon JJ in their reasons for refusing special leave which I have set out above.
Case: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19
Outcome: referred to
respondent also referred to Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19 in connection with the weight that should be given to the principle referred to in [8]. In Murphy the appellant had submitted that there was a presumption that the word 'false' should mean the same thing in s 229 of the Customs Act 1901 (Cth) as it did in s 234 of that Act. The majority held (at 27): 'Plainly, there is some force in that argument. On the other hand, as Gibbs J. commented in Clyne v Deputy Commissioner of Taxation, the presumption that a word is used with a uniform meaning in a statute is not one "of very much weight... it all depends on the context". In the same case, Mason J. pointed out that the "presumption readily yields to the context".' (footnotes omitted) In the circumstances it is appropriate to consider the history of the rules and the policy that they were intended to promote.
Case: Re Levis and Australian Community Pharmacy Authority (1998) 51 ALD 757
Outcome: referred to
support of its construction of rule 6 the respondent referred to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 and a decision of Deputy President McMahon of the Administrative Appeal Tribunal in Re Levis and Australian Community Pharmacy Authority (1998) 51 ALD 757. Both of these cases were concerned with earlier versions of the rules than those presently under consideration. The provisions considered in Re Levis were not relevantly different and Deputy President McMahon relied upon the decision in the Pharmacy Guild case in reaching a similar conclusion.
Case: Registrar of Titles (WA) v Franzon [1975] HCA 41 ; (1975) 132 CLR 611
Outcome: referred to
I have reached the conclusion stated above, the starting point of my analysis (and the applicant's submissions) is the generally accepted principle that, unless there is a reason to conclude otherwise, such as an indication in the statute itself, 'it is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute'; Registrar of Titles (WA) v Franzon [1975] HCA 41 ; (1975) 132 CLR 611 at 618 per Mason J. If that principle were to be applied, the first step in the application of either subrule would be to identify the ' nearest other premises' in respect of which a pharmacist is approved under s 90 of the Act. On that basis the premises so identified would be the same whether one was applying subrule 6(b)(i) or 6(b)(ii). The Act does not say how one is to determine which other premises is the 'nearest' and therefore, subject to other indications to the contrary, one would give the word its ordinary English meaning. In the subrules under consideration 'nearest' is used in respect of proximity or distance; it is the superlative form of the adjective, 'near' which, according to the Oxford English Dictionary, means 'to, within or at a short distance' or 'close to a place, thing or person in respect of space or time'. The 'nearest' other premises are the 'closest' other premises or those which are the shortest distance away. The shortest distance between two places is colloquially referred to as being a 'beeline' or 'as the crow flies', meaning a direct route that has no obstacles and is roughly a straight line measurement. On this analysis, the nearest other premises to the proposed premises are not necessarily those that are the quickest to reach from the proposed premises. The statement that 'X pharmacy is the closest' (or nearest), but that it would be 'quicker to get to Y pharmacy' is immediately understandable as making that distinction.
Case: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287
Outcome: referred to
background to these rules was explained by Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287. His Honour referred to an agreement made in 1990 between the Government and the Pharmacy Guild of Australia which was intended to reduce the number of pharmacies approved to supply pharmaceutical benefits. His Honour continued at 294: '... the Government ultimately accepted recommendations made to it that pharmacy numbers should be reduced by encouraging pharmacists to either amalgamate or close to reduce the number of inefficient pharmacies and to strengthen the more viable pharmacies that remained. Provision was to be made for closure payments and, where an amalgamation or closure payment was made, no new approval in respect of the premises was to be granted unless certain approval criteria were met.' The subsequent development of this policy through two subsequent agreements and the change in emphasis from 'a preoccupation with concentration of pharmacies in a particular locality ... to a desire to introduce more competition between pharmacies' was referred to in the AAT decision under review. The Third Community Pharmacy Agreement, made in 2000, refers in clause 21(d) to a purpose in amending the rules governing pharmacy relocations as being "to enhance competition consistent with the maintenance of a viable and well distributed community pharmacy network". I do not accept that the applicant's interpretation interpolates into rule 6 an unarticulated criterion for determining which premises are the nearest. In my view the reasons for interpreting 'nearest other premises' as set out in [8]-[10] are coherent and acceptable subject to there being indications in the statute or otherwise that a different meaning was intended. In addition, I do not accept that the applicant's interpretation defeats the purpose of having the two subrules with their different modes of measurement. On the applicant's interpretation once the 'nearest' premises have been identified, if the straight line measurement is at least 1.5 kilometres then the application must be approved. If, however, that measurement is less than 1.5 kilometres then the distance from the proposed premises by lawful access measurement must be determined. If that distance is 2 kilometres or more then a positive recommendation must be made under rule 6(b)(ii). For instance, using a common example, assume pharmacy A is only 500 metres by straight line measurement from the proposed premises but is directly across a river so that the shortest means of lawful access is across a bridge some 3 kilometres downstream. In that example the criterion in subrule 6(b)(ii) would be met and a positive recommendation made even though subrule 6(b)(i) has not been met.
Case: Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411
Outcome: cited
does not mean that the relevant person is to be a technician or person with only practical and non-academic qualifications. In fields such as chemistry, such a person can be a person or group with high level qualifications and a capacity for original research ( Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 , [30] and NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216 , [151]).
Case: Austral Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420
Outcome: followed
the specification, including the claims, is not to be read in the abstract, but instead construed with common sense, in light of the common general knowledge in the art as at the priority date: Bennett J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420 at [71] . Her Honour, in Sachtler GMBH &amp; Co KG v RE Miller Pty Ltd ( [2005] FCA 788 ; 2005) 65 IPR 605 referred to the cases dealing with the principles for construing claims at [41], and at [42] set out in some detail the principles apposite to the construction of the claims in a patent. The Court is to place itself "in the position of some person acquainted with the surrounding circumstances as to the state of art and manufacture at the relevant time," and educate itself about the meaning of the technical terms: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 , [24].
Case: Flexible Steel Lacing Co v Beltreco Ltd [2000] FCA 890 ; (2001) 49 IPR 331
Outcome: cited
principles were summarised by Hely J in Flexible Steel Lacing Co v Beltreco Ltd [2000] FCA 890 ; (2001) 49 IPR 331 , where his Honour said at 350:
Case: Flour Oxidising Co Ltd v Carr &amp; Co Ltd (9108) 25 RPC 428
Outcome: discussed
task of establishing lack of novelty by material that had been published earlier, was the subject of observations by Parker J in Flour Oxidising Co Ltd v Carr &amp; Co Ltd (1908) 25 RPC 428 , who said at [457]: [W] here the question is solely a question of prior publication, it is not, in my opinion, enough to prove that an apparatus described in an earlier specification could have been used to produce this or that result. It must also be shown that the [prior] specification contains clear and unmistakable directions so to use it.
Case: General Tire &amp; Rubber Co v Firestone Tyre and Rubber Co Ltd (1971) 1A IPR 121
Outcome: cited
and Lindgren JJ discussed in Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 what was required to establish lack of novelty, at [313]: 313 The law relating to novelty under the 1990 Act was considered by the Full Court in Bristol-Myers Squibb. In the joint judgment of Black CJ and Lehane J, their Honours referred to what had been said by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235; [1977] HCA 19 ; 13 ALR 605 at 611; [1977] HCA 19 ; 1A IPR 181 at 186: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement. In the case of a paper anticipation such as a specification or publication, there can be no direct application of the reverse infringement test. An hypothetical infringement may be posited on the assumption that somebody does or makes what the alleged anticipation suggests. Their Honours cited Lord Westbury in Hill v Evans (at [63]): [63] ... the antecedent statement must be such that a person of ordinary knowledge of the subject would at once perceive, understand, and be able practically to apply the discovery without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the useful application of the discovery, that affords sufficient room for another valid patent. Their Honours also referred to Flour Oxidizing Co Ltd v Carr &amp; Co Ltd (1908) 25 RPC 428 ; Canadian General Electric Co at 104 and General Tire &amp; Rubber Co v Firestone Tyre and Rubber Co Ltd (1971) 1A IPR 121; [1972] RPC 457. After reviewing those authorities, they said (at [67]): [67] What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it. Their Honours at [317] referred to the observations of Crennan J in Imperial Chemicals Industries Pty Ltd v Cmr of Patents (2004) 213 ALR 399 ; 63 IPR 476 ; [2004] FCA 1658 , where her Honour there quoted Sachs LJ in General Tire &amp; Rubber Co at [61]: [61] ... a signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
Case: Imperial Chemicals Industries Pty Ltd v Cmr of Patents [2004] FCA 1658 ; (2004) 213 ALR 399
Outcome: cited
Honours at [317] referred to the observations of Crennan J in Imperial Chemicals Industries Pty Ltd v Cmr of Patents (2004) 213 ALR 399 ; 63 IPR 476 ; [2004] FCA 1658 , where her Honour there quoted Sachs LJ in General Tire &amp; Rubber Co at [61]: [61] ... a signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
Case: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1
Outcome: followed
the specification, including the claims, is not to be read in the abstract, but instead construed with common sense, in light of the common general knowledge in the art as at the priority date: Bennett J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420 at [71] . Her Honour, in Sachtler GMBH &amp; Co KG v RE Miller Pty Ltd ( [2005] FCA 788 ; 2005) 65 IPR 605 referred to the cases dealing with the principles for construing claims at [41], and at [42] set out in some detail the principles apposite to the construction of the claims in a patent. The Court is to place itself "in the position of some person acquainted with the surrounding circumstances as to the state of art and manufacture at the relevant time," and educate itself about the meaning of the technical terms: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 , [24].
Case: Minnesota Mining and Manufacturing Co and 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253
Outcome: followed
person skilled in the art for the purposes of determining the scope of a patent's claims is a hypothetical, non-inventive worker in the relevant field of technology in Australia, who is equipped with the common general knowledge in the art ( Minnesota Mining and Manufacturing Co and 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd [1980] HCA 9 ; (1980) 144 CLR 253).
Case: NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216
Outcome: cited
does not mean that the relevant person is to be a technician or person with only practical and non-academic qualifications. In fields such as chemistry, such a person can be a person or group with high level qualifications and a capacity for original research ( Aktiebolaget H&auml;ssle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 , [30] and NSI Dental Pty Ltd v University of Melbourne [2006] FCA 1216 , [151]).
Case: Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1
Outcome: discussed
and Lindgren JJ discussed in Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 what was required to establish lack of novelty, at [313]: 313 The law relating to novelty under the 1990 Act was considered by the Full Court in Bristol-Myers Squibb. In the joint judgment of Black CJ and Lehane J, their Honours referred to what had been said by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235; [1977] HCA 19 ; 13 ALR 605 at 611; [1977] HCA 19 ; 1A IPR 181 at 186: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement. In the case of a paper anticipation such as a specification or publication, there can be no direct application of the reverse infringement test. An hypothetical infringement may be posited on the assumption that somebody does or makes what the alleged anticipation suggests. Their Honours cited Lord Westbury in Hill v Evans (at [63]): [63] ... the antecedent statement must be such that a person of ordinary knowledge of the subject would at once perceive, understand, and be able practically to apply the discovery without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the useful application of the discovery, that affords sufficient room for another valid patent. Their Honours also referred to Flour Oxidizing Co Ltd v Carr &amp; Co Ltd (1908) 25 RPC 428 ; Canadian General Electric Co at 104 and General Tire &amp; Rubber Co v Firestone Tyre and Rubber Co Ltd (1971) 1A IPR 121; [1972] RPC 457. After reviewing those authorities, they said (at [67]): [67] What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it. Crennan J agreed with French and Lindgren JJ that Claim 10 of the Patent in Suit was invalid because it was invalid because it was obvious or disclosed no inventive step, and with the other findings of their Honour. Save the finding with respect to fair basis, Crennan J was of the view that Claim 10 was fairly based on the matter described in the specification. I turn then to consider the evidence concerning lack of novelty, in the light of the above exposition of principle. It is necessary to set out that evidence at some length. The Wasserstrom Patent is dated July 2, 1996. It is to be found in exhibit 2 at pages 39 to 49.
Case: Ryan v Lum (1989) 14 IPR 513
Outcome: followed
seeking revocation of the patent, the respondent bears the onus of proof in establishing successfully a ground of invalidity ( Ryan v Lum (1989) 14 IPR 513 , 518-520). Section 138 of the Act relevantly provides: (1) Subject to subsection (1A), the Minister or any other person may apply to a prescribed court for an order revoking a patent. (1A) A person cannot apply for an order in respect of an innovation patent unless the patent has been certified. (2) At the hearing of the application, the respondent is entitled to begin and give evidence in support of the patent and, if the applicant gives evidence disputing the validity of the patent, the respondent is entitled to reply. (3) After hearing the application, the court may, by order, revoke the patent, either wholly or so far as it relates to a claim, on one or more of the following grounds, but on no other ground: (a) that the patentee is not entitled to the patent; (b) that the invention is not a patentable invention; (c) that the patentee has contravened a condition in the patent; (d) that the patent was obtained by fraud, false suggestion or misrepresentation; (e) that an amendment of the patent request or the complete specification was made or obtained by fraud, false suggestion or misrepresentation; (f) that the specification does not comply with subsection 40(2) or (3). Subsection 40(3) provides: (3) The claim or claims must be clear and succinct and fairly based on the matter described in the specification. Lack of novelty by reason of prior publication
Case: Sachtler GMBH &amp; Co KG v RE Miller Pty Ltd [2005] FCA 788 ; (2005) 65 IPR 605
Outcome: cited
the specification, including the claims, is not to be read in the abstract, but instead construed with common sense, in light of the common general knowledge in the art as at the priority date: Bennett J in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2005] FCA 805 ; (2005) 66 IPR 420 at [71] . Her Honour, in Sachtler GMBH &amp; Co KG v RE Miller Pty Ltd ( [2005] FCA 788 ; 2005) 65 IPR 605 referred to the cases dealing with the principles for construing claims at [41], and at [42] set out in some detail the principles apposite to the construction of the claims in a patent. The Court is to place itself "in the position of some person acquainted with the surrounding circumstances as to the state of art and manufacture at the relevant time," and educate itself about the meaning of the technical terms: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8 ; (2001) 207 CLR 1 , [24].