mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608
Outcome: cited
the notion of a "market in Australia" in s 4E has been referred to in two cases ( Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] per Hill J and Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256 at [19] per Tracey J), the concept has not been the subject of extensive judicial consideration. In Riverstone , Hill J rejected the proposition that in order to be a "market in Australia" a market must be wholly within Australia. His Honour said (at [21]) that the fact that a market was global did not signify that there could not be a market in Australia for the same products. As the Commission points out, a contrary view would considerably reduce the efficacy and utility of the competition law provisions of the Act, especially in the modern telecommunications era. The definition of "market in Australia" in s 4E excludes, however, a market that is wholly outside Australia. Part of the present global and international air cargo market necessarily falls within the territorial boundaries of Australia. The Fuel Surcharge Understanding necessarily affected the prices exacted from persons, including persons in Australia, in respect of the international transport of cargo by air. In my view, the jurisdictional threshold in s 5 of the Act is satisfied.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: referred to
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( TPC v CSR ) at 52,152-52,153 French J identified the following considerations as being relevant to the level of penalty: (a) the nature and extent of the contravening conduct; (b) the amount of loss or damage caused; (c) the circumstances in which the conduct took place; (d) the size of the contravening company; (e) the degree of power it has, as evidenced by its market share and ease of entry into the market; (f) the deliberateness of the contravention and the period over which it extended; (g) whether the contravention arose out of the conduct of senior management or at a lower level; (h) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (i) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.
Case: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091
Outcome: cited
principal object of imposing a penalty under s 76 is deterrence, both specific and general: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896; TPC v CSR at 52,152; NW Frozen Foods , above, at 292-294.
Case: Gaio v The Queen [1960] HCA 70 ; (1960) 104 CLR 419 at 433
Outcome: cited
I accept that perfect interpretation is never possible, there must be translation which provides an effective communication between the parties: see, Gaio v The Queen [1960] HCA 70 ; (1960) 104 CLR 419 at 433 and WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [66] . This did not occur in this case.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
39 of the AAT Act requires that the Tribunal apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J; O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] ; and Repatriation Commission v Farley-Smith (2007) 45 AAR 474 at [54]. Obviously, the requirements of procedural fairness will depend upon the particular circumstances of each case. More specifically, s 39 provides that the Tribunal must ensure that every party before it is given a reasonable opportunity to present his or her case. If such a statutory duty is not complied with there is an error of law.
Case: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334
Outcome: cited
appreciate that a solicitor represented the applicant at the Tribunal. This in itself does not absolve the Tribunal from carrying out the mandate set forth in s 39 of the AAT Act: see, eg, Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 , 342-43 per Bowen CJ and Sullivan v Department of Transport (1978) 20 ALR 323 , at 326 per Smithers J, and at 342 per Deane J. For instance, a failure of a tribunal to adjourn a matter could constitute a failure to allow a party to present his or her case even if an adjournment was not requested: see Deane J at 342 and Priddle v Fisher &amp; Sons (1968) 1 WLR 1478. On the other hand, I accept that in circumstances where a party is represented there is some onus upon a party to be proactive: see, eg, Schiffer v Pattison [2001] FCA 1094 and Farley-Smith 45 AAR 474 at [54]. However, the solicitor representing the applicant in the circumstances of this case could hardly have been expected to know of the extent of the inadequacy of the translator when the applicant herself was not present to advise him. In an important respect, namely the inadequacy of the translation itself, the solicitor had no basis upon which to be proactive.
Case: O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590
Outcome: cited
39 of the AAT Act requires that the Tribunal apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J; O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] ; and Repatriation Commission v Farley-Smith (2007) 45 AAR 474 at [54]. Obviously, the requirements of procedural fairness will depend upon the particular circumstances of each case. More specifically, s 39 provides that the Tribunal must ensure that every party before it is given a reasonable opportunity to present his or her case. If such a statutory duty is not complied with there is an error of law.
Case: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6
Outcome: cited
my view, the evidence of Ms Yu-Lin was effectively precluded from being properly presented because of the inadequacy of the translator. I am satisfied that the interpretation was so inadequate that it prevented the applicant from putting before the Tribunal the evidence she desired to rely upon, and that the evidence was significant to the applicant's case: see, eg Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322 ; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 ; and SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 per Gilmour J.
Case: Priddle v Fisher &amp; Sons (1968) 1 WLR 1478
Outcome: cited
appreciate that a solicitor represented the applicant at the Tribunal. This in itself does not absolve the Tribunal from carrying out the mandate set forth in s 39 of the AAT Act: see, eg, Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 , 342-43 per Bowen CJ and Sullivan v Department of Transport (1978) 20 ALR 323 , at 326 per Smithers J, and at 342 per Deane J. For instance, a failure of a tribunal to adjourn a matter could constitute a failure to allow a party to present his or her case even if an adjournment was not requested: see Deane J at 342 and Priddle v Fisher &amp; Sons (1968) 1 WLR 1478. On the other hand, I accept that in circumstances where a party is represented there is some onus upon a party to be proactive: see, eg, Schiffer v Pattison [2001] FCA 1094 and Farley-Smith 45 AAR 474 at [54]. However, the solicitor representing the applicant in the circumstances of this case could hardly have been expected to know of the extent of the inadequacy of the translator when the applicant herself was not present to advise him. In an important respect, namely the inadequacy of the translation itself, the solicitor had no basis upon which to be proactive.
Case: Repatriation Commission v Farley-Smith (2007) 45 AAR 474
Outcome: cited
39 of the AAT Act requires that the Tribunal apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J; O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] ; and Repatriation Commission v Farley-Smith (2007) 45 AAR 474 at [54]. Obviously, the requirements of procedural fairness will depend upon the particular circumstances of each case. More specifically, s 39 provides that the Tribunal must ensure that every party before it is given a reasonable opportunity to present his or her case. If such a statutory duty is not complied with there is an error of law. I appreciate that a solicitor represented the applicant at the Tribunal. This in itself does not absolve the Tribunal from carrying out the mandate set forth in s 39 of the AAT Act: see, eg, Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 , 342-43 per Bowen CJ and Sullivan v Department of Transport (1978) 20 ALR 323 , at 326 per Smithers J, and at 342 per Deane J. For instance, a failure of a tribunal to adjourn a matter could constitute a failure to allow a party to present his or her case even if an adjournment was not requested: see Deane J at 342 and Priddle v Fisher &amp; Sons (1968) 1 WLR 1478. On the other hand, I accept that in circumstances where a party is represented there is some onus upon a party to be proactive: see, eg, Schiffer v Pattison [2001] FCA 1094 and Farley-Smith 45 AAR 474 at [54]. However, the solicitor representing the applicant in the circumstances of this case could hardly have been expected to know of the extent of the inadequacy of the translator when the applicant herself was not present to advise him. In an important respect, namely the inadequacy of the translation itself, the solicitor had no basis upon which to be proactive.
Case: Schiffer v Pattison [2001] FCA 1094
Outcome: cited
appreciate that a solicitor represented the applicant at the Tribunal. This in itself does not absolve the Tribunal from carrying out the mandate set forth in s 39 of the AAT Act: see, eg, Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 , 342-43 per Bowen CJ and Sullivan v Department of Transport (1978) 20 ALR 323 , at 326 per Smithers J, and at 342 per Deane J. For instance, a failure of a tribunal to adjourn a matter could constitute a failure to allow a party to present his or her case even if an adjournment was not requested: see Deane J at 342 and Priddle v Fisher &amp; Sons (1968) 1 WLR 1478. On the other hand, I accept that in circumstances where a party is represented there is some onus upon a party to be proactive: see, eg, Schiffer v Pattison [2001] FCA 1094 and Farley-Smith 45 AAR 474 at [54]. However, the solicitor representing the applicant in the circumstances of this case could hardly have been expected to know of the extent of the inadequacy of the translator when the applicant herself was not present to advise him. In an important respect, namely the inadequacy of the translation itself, the solicitor had no basis upon which to be proactive.
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: followed
appreciate that a solicitor represented the applicant at the Tribunal. This in itself does not absolve the Tribunal from carrying out the mandate set forth in s 39 of the AAT Act: see, eg, Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 , 342-43 per Bowen CJ and Sullivan v Department of Transport (1978) 20 ALR 323 , at 326 per Smithers J, and at 342 per Deane J. For instance, a failure of a tribunal to adjourn a matter could constitute a failure to allow a party to present his or her case even if an adjournment was not requested: see Deane J at 342 and Priddle v Fisher &amp; Sons (1968) 1 WLR 1478. On the other hand, I accept that in circumstances where a party is represented there is some onus upon a party to be proactive: see, eg, Schiffer v Pattison [2001] FCA 1094 and Farley-Smith 45 AAR 474 at [54]. However, the solicitor representing the applicant in the circumstances of this case could hardly have been expected to know of the extent of the inadequacy of the translator when the applicant herself was not present to advise him. In an important respect, namely the inadequacy of the translation itself, the solicitor had no basis upon which to be proactive. As the respondent properly submitted, the Tribunal is not obliged to undertake the 'impossible task' of ensuring that a party takes best advantage of the opportunity to which he or she is entitled: see Sullivan 20 ALR 323 at 343 per Deane J. However, this is not the task suggested here &#8212; there is nothing impossible in the Tribunal giving the applicant a reasonable opportunity to present the evidence by the employment of an adequate interpreter. The reasonable opportunity is the opportunity to obtain an adequate interpreter, which did not occur here.
Case: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238
Outcome: cited
my view, the evidence of Ms Yu-Lin was effectively precluded from being properly presented because of the inadequacy of the translator. I am satisfied that the interpretation was so inadequate that it prevented the applicant from putting before the Tribunal the evidence she desired to rely upon, and that the evidence was significant to the applicant's case: see, eg Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322 ; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 ; and SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 per Gilmour J.
Case: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322
Outcome: cited
my view, the evidence of Ms Yu-Lin was effectively precluded from being properly presented because of the inadequacy of the translator. I am satisfied that the interpretation was so inadequate that it prevented the applicant from putting before the Tribunal the evidence she desired to rely upon, and that the evidence was significant to the applicant's case: see, eg Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322 ; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 ; (1999) 92 FCR 6 ; and SZGWN v Minister for Immigration and Citizenship [2008] FCA 238 per Gilmour J.
Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511
Outcome: cited
I accept that perfect interpretation is never possible, there must be translation which provides an effective communication between the parties: see, Gaio v The Queen [1960] HCA 70 ; (1960) 104 CLR 419 at 433 and WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 131 FCR 511 at [66] . This did not occur in this case.
Case: Acme Bedstead Co Ltd v Newlands Bros Ltd [1937] HCA 63 ; (1937) 58 CLR 689
Outcome: cited
my opinion, it is clear that the earlier disclosure must be "enabling": see for example, Hill v Evans at 8 ("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"); Flour Oxidising Co Ltd v Carr &amp; Co Ltd (1908) 25 RPC 428 at 457 per Parker J ("clear and unmistakable directions so to use [the earlier apparatus]"); Acme Bedstead Co Ltd v Newlands Bros Ltd [1937] HCA 63 ; (1937) 58 CLR 689 at 707 per Dixon J; Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 260-262 per Stephen and Mason JJ; Nicaro Holdings Pty Ltd v Marlin Engineering Co (1990) 91 ALR 513 at 531-532 per Gummow J (the supposed anticipation must not require of the skilled but non-inventive addressee "the exercise of any inventive ingenuity and the taking of any inventive step"); Bristol-Myers Squibb Co v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at [67] per Black CJ and Lehane J ("must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention"); Imperial Chemical Industries Pty Ltd v Commissioner of Patents [2004] FCA 1658 ; (2005) 213 ALR 399 at [61] ff per Crennan J; Pfizer v Eli Lilly at [313]-[324] per French and Lindgren JJ.
Case: Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1998] HCA 19 ; (1998) 194 CLR 171
Outcome: cited
determining whether what is claimed fits the description of a "manner of manufacture", one must confine one's attention to the face of the specification: Philips v Mirabella at 663-664; Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1998] HCA 19 ; (1998) 194 CLR 171 (Ramset) at [38] ; CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168 ; (1994) 51 FCR 260 ( CCOM v Jiejing ) at 291). The notion of a manner of manufacture does not incorporate considerations of novelty or inventiveness which are dealt with independently and comprehensively in s 18(1)(b), s 7, and the definitions of "prior art base" and "prior art information" in Sch 1: see Ramset at [30]-[34] (dealing with s 100 of the 1952 Act).
Case: Atlantis Corporation Pty Ltd v Schindler (1997) 39 IPR 29
Outcome: distinguished
submits that it is no more permissible to read in the word "pure" than it was to read the qualifier "drainage" into the claims in the patent specification in Atlantis Corporation Pty Ltd v Schindler (1997) 39 IPR 29 ( Atlantis ). The invention in that case was entitled in the complete specification "Drainage Cell" and was stated to relate to "the provision of adequate drainage by artificial means" and to have particular application in the area of landscape gardening". However, the claims simply described a rigid cell structure. A Full Court of this Court held that the claims were unambiguous and were simply in respect of the rigid structure without any limitation by reference to the purpose of "drainage". In my view, the facts in Atlantis are distinguishable. There was no question in Atlantis of whether the object was claimed an object in its own right. Quite apart from: the expert evidence that, where no purity is specified in relation to a compound, chemists read in a 95% purity criterion; and the references to "individual", "pure", separated" and "isolated" elsewhere in the Patent, I would have understood an unqualified reference to (+)-citalopram, whether in the open literature or in a patent, to refer to that compound when other than merely part of the unresolved racemate. Alphapharm draws attention to the fact that both Professors Banwell and Davies said that from the formula for the racemic mixture (citalopram) they could deduce the formulae for the (+)-enantiomer and the (-)-enantiomer. I do not think this fact to be persuasive as to how claim 1 is properly to be construed. Alphapharm draws attention to the Patent's title as it existed prior to amendment and to the terms of overseas Escitalopram Patents.
Case: Beecham Group Ltd v Bristol Laboratories Ltd (1977) 1B IPR 665
Outcome: referred to
Beecham Group Ltd v Bristol Laboratories Ltd (1977) 1B IPR 665 ( Beecham) , the plaintiff alleged infringement of patents for a pharmaceutical compound by the importation, offering for sale and sale in the United Kingdom of the antibiotic, Hetacillin. The plaintiff held four patents relating to a new class of semi-synthetic penicillins and to methods for their manufacture. One such penicillin was Ampicillin, a valuable antibiotic. The clinical effectiveness of Hetacillin was due entirely to Ampicillin, of which it was an acetone derivative. In the presence of water, as and when administered as an antibiotic, Hetacillin would revert into Ampicillin by a reversible chemical reaction. The Lundbecks rely on a passage from the speech of Lord Diplock, the whole of the paragraph being as follows (p 710): I have already expressed my opinion that the pith and marrow doctrine is applicable to claims for new products as well as to new processes; and I agree with the Court of Appeal that the relationship of hetacillin to ampicillin provides a clear case for its application. It was argued that what is claimed in the patents as an essential feature of the class of products to which ampicillin belongs is the presence of an amino group in the alpha position, and that this feature is absent in hetacillin. This is literally true at the time of importation and sale but it ceases to be true as soon as hetacillin is put to use for the only purpose for which it is intended. The substitution for the postulated amino group of the variant incorporated in hetacillin is evanescent and reversible and for all practical purposes of use can be regarded as the equivalent of the amino group in ampicillin. In the apt phrase used by the Court of Appeal, it is the reproduction of the substance ampicillin, albeit temporarily masked. His Lordship was addressing a product claim. In the imported hetacillin, there was a substituent for the amino group in the alpha position, but the substitution of the variant was "evanescent and reversible" and could be regarded as the equivalent of the amino group in the alpha position in the patented drug ampicillin. The Lundbecks draw an analogy with the bromo-diol's performance of the function of the cyano-diol. Wootten J was of the view (at 532) that a proper and convenient way to test the matter was to ask whether the sale of monensin sodium in Australia by another person would be an infringement of the patent. After referring to Beecham , his Honour held (at 534) that "the mere conversion of monensic acid to monensin sodium with the retention of substantially the same molecular structure and the same therapeutic effects, and involving only the use of a simple and well understood process, would fall within the 'pith and marrow' doctrine".
Case: Bristol-Myers Squibb Co v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524
Outcome: cited
my opinion, it is clear that the earlier disclosure must be "enabling": see for example, Hill v Evans at 8 ("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"); Flour Oxidising Co Ltd v Carr &amp; Co Ltd (1908) 25 RPC 428 at 457 per Parker J ("clear and unmistakable directions so to use [the earlier apparatus]"); Acme Bedstead Co Ltd v Newlands Bros Ltd [1937] HCA 63 ; (1937) 58 CLR 689 at 707 per Dixon J; Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 260-262 per Stephen and Mason JJ; Nicaro Holdings Pty Ltd v Marlin Engineering Co (1990) 91 ALR 513 at 531-532 per Gummow J (the supposed anticipation must not require of the skilled but non-inventive addressee "the exercise of any inventive ingenuity and the taking of any inventive step"); Bristol-Myers Squibb Co v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at [67] per Black CJ and Lehane J ("must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention"); Imperial Chemical Industries Pty Ltd v Commissioner of Patents [2004] FCA 1658 ; (2005) 213 ALR 399 at [61] ff per Crennan J; Pfizer v Eli Lilly at [313]-[324] per French and Lindgren JJ.