mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sartas No 1 Pty Ltd v Koukourou &amp; Partners Pty Ltd [1994] FCA 1529 ; (1994) 30 IPR 479
Outcome: followed
a patent has been infringed rests on the proper interpretation of each claim, as it is these that define the width and precise scope of the alleged invention: Sartas No 1 Pty Ltd v Koukourou &amp; Partners Pty Ltd [1994] FCA 1529 ; (1994) 30 IPR 479 , 485 per Gummow J.
Case: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Outcome: followed
One available inference is that he simply gave the Federal Magistrates Court proceedings no thought or consideration prior to November 2007. If an extension of time is sought, it remains a matter for the party seeking the extension to set forth a factual basis upon which the discretion may properly be exercised. Rules of court, particularly those relating to time, should never be allowed to become an " instrument of tyranny ": see Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30. But prima facie , they must be obeyed. The factual basis upon which Mr von Arnim is seeking an extension of time is, it is considered, not sufficient to justify an exercise of discretion in his favour. Even had an extension of time been granted, leave to appeal would also not have been granted. 14 The fact remains, however, that the trustee was given notice and no election was made within the 28 day period prescribed by s 60(3) of the Bankruptcy Act . 15 The orders of the Court are: 1. The proceedings be dismissed. 2. The Applicant to pay the Respondent's costs, including reserved costs, as agreed or taxed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 7 April 2008 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondent: S Taleski (NV Lawyers) Date of Hearing: 7 April 2008 Date of Judgment: 7 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/472.html
Case: Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551
Outcome: cited
act is unlawful within s 9 (1) if an act: &#8226; Involves a distinction, exclusion, restriction or preference. &#8226; That is based on race, colour, descent or national or ethnic origin; and &#8226; The existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. The inquiry is not one as to motive rather the inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act (Doyle CJ in Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 at 553).
Case: ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109
Outcome: cited
an employer/employee relationship exists between parties is determined by the nature of their relationship and whether indicia of employment are evident. This issue has been the subject of much judicial comment. The leading Australian case on the topic is Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 per Mason J at 24 and Wilson and Dawson JJ at 36, recently considered by the Full Court of the Federal Court in ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109 at [19-21] , where incidents of the employment relationship were identified as: &#8226; the measure of control that the putative employer is entitled to exercise over the worker &#8226; the mode of remuneration &#8226; the provision and maintenance of equipment &#8226; the obligation to work &#8226; the hours of work &#8226; the provision for holidays &#8226; the deduction of income tax &#8226; the delegation of work &#8226; the right to have a particular person do the work &#8226; the right to suspend or dismiss the person engaged &#8226; the right to the exclusive services of the person engaged &#8226; the right to dictate the place of work.
Case: Batistatos v Road Traffic Authority of New South Wales [2004] NSWSC 796
Outcome: discussed
J at first instance rejected the submissions of the defendants in relation to ground (ii) that the plaintiff's claim was so obviously untenable that it could not possibly succeed or so manifestly faulty that it did not admit of argument ([2004] NSWSC 796 at [26]). Accordingly, his Honour declined to make an order summarily dismissing the plaintiff's claim. The conclusion of Hoeben J on this issue was endorsed by the NSW Court of Appeal ([2005] NSWCA 20 at [48]). That particular aspect of the decision of the Court of Appeal was not appealed to the High Court. Hoeben J noted that the defendants carried the onus in relation to the application, and that: 'It is not for the plaintiff to establish that a fair trial can be had but for the defendants to establish that their chances of having a fair trial are so low that to allow the proceedings to continue would be unjustifiably vexatious and oppressive to them .' [[2004] NSWSC 796 at [41]] His Honour was not satisfied however that the circumstances of the case were so exceptional that to allow the matter to proceed would be vexatious and oppressive to the defendants, and refused to permanently stay the plaintiff's claim either pursuant to Pt 13 r 5 or the inherent jurisdiction of the court. The defendants appealed this aspect of the decision to the Court of Appeal of New South Wales.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; [1964] 112 CLR 125
Outcome: cited
the Court of Appeal of New South Wales pointed out ([2005] NSWCA 20 at [13]): &#8226; grounds (i) and (iii) were the same in substance, as there was no suggestion that the proceedings in Batistatos were an abuse of process other than because the defendants were irretrievably prejudiced by reason of the delay in the proceedings being brought; and &#8226; ground (ii) indicated reliance by the defendants on the power of the Court to summarily dispose of proceedings in Pt 13 r 5, the test for which was whether the case was so clearly untenable that it could not possibly succeed (Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; [1964] 112 CLR 125 at 129-130).
Case: Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) FCA 123
Outcome: cited
am not required at this stage to consider whether s 46PR HREOC Act would be of assistance to the applicants, or whether comments of the Full Court in Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) FCA 123 at 20 would be relevant in relation to the evidence which the applicants would seek to elicit from Mr Hockey. However it is, in my opinion, important to consider realistically what evidence is before or likely to come before the Court. From the evidence of Dr Illes, it appears that even non-traditional questioning of Mr Hockey could be harmful to his health. On the facts before me I am of the view that Mr Hockey would not be able to give evidence in any form capable of being used by this Court, whether by affidavit, elicited by examination and cross-examination or otherwise as foreshadowed by Mr O'Gorman, or in person, by telephone or otherwise. The ability of Mr Hockey to give evidence could be critical in that he could potentially explain such documents as exist relating to the management and operations of Doomadgee Mission. He appears to be the only person living with an intimate knowledge of the management of Doomadgee Mission during the relevant period, or who has the first hand knowledge to be in a position to explain documents relating to management of the Mission during that time.
Case: Herron v McGregor (1986) 6 NSWLR 246
Outcome: cited
delivering the lead judgment of the Court of Appeal, Bryson JA noted that, notwithstanding that the relevant limitation periods applicable to the plaintiff had not expired, it was nonetheless competent for the Court to entertain an application for a permanent stay on the proceedings due to effluxion of time ([2005] NSWCA 20 at 51-52, 57, citing McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 253-255).
Case: Hunter v Chief Constable of the West Midlands Police (1982) AC 529
Outcome: cited
is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]).
Case: Koowarta v Bjelke-Petersen (1982) 39 ALR 417
Outcome: cited
validity of s 9 of the Act was confirmed by the High Court in Koowarta v Bjelke-Petersen (1982) 39 ALR 417. The grounds in s 9 of the Act have been described as a 'mini Bill of Rights' (P Bailey Human Rights: Australia in an International Contex t Butterworths 1990 p 188).
Case: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
Outcome: cited
comment appears equally relevant today: one of the few cases considering s 9 in isolation is Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 per Weinberg J, confirmed on appeal as Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287 ; (1999) 91 FCR 47. In that case, Weinberg J at first instance found inter alia that: &#8226; 'based on' in s 9(1) encompasses the broader, non-necessarily causative, relationship expressed in the phrase 'by reference to' &#8226; motive, intention or purpose are irrelevant under s 9(1).
Case: Meka v Shell Company Australia Ltd [2005] FMCA 250
Outcome: cited
9 is expressed in general terms, and in most cases is pleaded in association with other provisions of the Act including s 15 as was the situation in this case (another example of a case involving both s 9 and s 15 is Meka v Shell Company Australia Ltd [2005] FMCA 250). As pointed out by Bailey: 'The purpose of s 9 is to provide a broad proscription of racial discrimination in almost any field... It provides a basis for challenge to many forms of discriminatory action ... However apart from Koowarta's case, s 9 has not so far been greatly used. This is probably because of its generality, and also because many of the major discriminations will be caught by the particular provisions in the remainder of Part II of the Act.' [Peter Bailey Human Rights: Australia in an International Context Butterworths 1990 p 189]
Case: Miller v University of New South Wales [2003] FCAFC 180
Outcome: cited
is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]).
Case: re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia [1987] HCA 27 ; (1987) 72 ALR 1
Outcome: cited
nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise namely that the power is, in essence, a power to refuse to exercise jurisdiction. The power is to be viewed in light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised (Gaudron J in Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 at 76). This principle was itself elaborated by Deane J in re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia [1987] HCA 27 ; (1987) 72 ALR 1 at 12 as: 'the prima facie right to insist upon the exercise of jurisdiction (as) a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amendable to the jurisdiction' of the courts and other public tribunals.' [cf Gaudron J in Jago at 76]
Case: Reid v New Zealand Trotting Conference [1984] 1 NZLR 8
Outcome: cited
which are an 'abuse of process' however are potentially a broad class, not limited to fixed categories. As pointed out by the majority of the High Court in Batistatos at [9]: 'What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.' (Note similar comments of Lord Diplock in Hunter v Chief Constable of West Midlands Police at 536, Richardson J in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9.) In Batistatos , their Honours considered earlier decisions where abuse of process in the sense of abuse of court process was discussed, and observed that circumstances where courts have formed the view that conduct constituted abuse of process included where: &#8226; proceedings were pending in another forum &#8226; proceedings were instituted for an improper or illegitimate purpose &#8226; proceedings were seriously and unfairly burdensome, prejudicial or damaging, including where there had been an unreasonable delay in commencing proceedings &#8226; proceedings were of serious and unjustified trouble and harassment &#8226; the use of the court's procedures would bring the administration of justice into disrepute &#8226; proceedings were frivolous or vexatious &#8226; there was no triable issue &#8226; it was impossible for the defendants to obtain a fair trial in the circumstances of the case.
Case: Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16
Outcome: cited
an employer/employee relationship exists between parties is determined by the nature of their relationship and whether indicia of employment are evident. This issue has been the subject of much judicial comment. The leading Australian case on the topic is Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16 per Mason J at 24 and Wilson and Dawson JJ at 36, recently considered by the Full Court of the Federal Court in ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109 at [19-21] , where incidents of the employment relationship were identified as: &#8226; the measure of control that the putative employer is entitled to exercise over the worker &#8226; the mode of remuneration &#8226; the provision and maintenance of equipment &#8226; the obligation to work &#8226; the hours of work &#8226; the provision for holidays &#8226; the deduction of income tax &#8226; the delegation of work &#8226; the right to have a particular person do the work &#8226; the right to suspend or dismiss the person engaged &#8226; the right to the exclusive services of the person engaged &#8226; the right to dictate the place of work.
Case: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 ; (2006) 227 ALR 46
Outcome: cited
reference to 'contract for services' in s 3(1) is to the traditional distinction at common law between an 'employee' who was employed under a 'contract of service', and an independent contractor who was engaged under a 'contract for services'. Historically, employers could be liable for wrongs inflicted on a third party by an employee, but not where the worker was an independent contractor (see for example B Creighton and A Stewart Labour Law: An Introduction (The Federation Press, 2000) pars 7.02-7.06 and the recent discussion of these principles by the High Court in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 ; (2006) 227 ALR 46 at 49). This distinction is not relevant in the case before me the only point is whether the applicants were employees of the respondent at the relevant time.
Case: Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287 ; (1999) 91 FCR 47
Outcome: cited
comment appears equally relevant today: one of the few cases considering s 9 in isolation is Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 per Weinberg J, confirmed on appeal as Victoria v Macedonian Teachers' Association of Victoria Inc [1999] FCA 1287 ; (1999) 91 FCR 47. In that case, Weinberg J at first instance found inter alia that: &#8226; 'based on' in s 9(1) encompasses the broader, non-necessarily causative, relationship expressed in the phrase 'by reference to' &#8226; motive, intention or purpose are irrelevant under s 9(1).
Case: Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378
Outcome: cited
is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]). Applications for permanent stay based on effluxion of time appear to be rare (note comments of Bryson JA in Newcastle City Council v Batistatos [2005] NSWCA 20 at 56). The issue has however been the subject of comment by the High Court of Australia in the context of criminal proceedings ( Jago ), in relation to tribunal deliberations ( Walton v Gardiner ), and recently in relation to civil proceedings ( Batistatos ).
Case: Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509
Outcome: cited
is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]).
Case: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14
Outcome: cited
A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 as an example. However, the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. The maximum penalty for the Union is $11,000 and $2,200 for Lane. 7 On any view Lane's contravention must be ranked at the high end of the range, although not as the most serious. His actions were concerted, deliberate and persistent over a period. They affected not only a small business operator in Silvestri P/L, but a significant project in the city of Wollongong. This cannot be seen as an isolated incident out of character. Lane presented his demands as part of a campaign to control industrial relations in the building industry in Wollongong. His conduct was belligerent and arrogant. He denied the case against him and fought it all the way. Following judgment he was quoted in an article in the Illawarra Mercury as follows: Mr Lane said the decision was an "absolute outrage". "I had no goal whatsoever of extracting an EBA between (Mr Silvestri) and his employees, because there were no employees" he said. In a letter addressed to the Court on 10 August 2007, Lane stated that he did not recall making the comments as quoted but did not deny making them. He withdrew his comments and apologised to the Court for making them, adding that they were made in haste with insufficient thought. The evidence shows that Lane's apology was the result of a direction by the CFMEU State Secretary. He is not entitled to any discount for genuine contrition as to the events of October 2003. 8 A number of character references were tendered on behalf of Lane. The references show that Lane is well regarded by his peers in the industry. However, some of the references seem to suggest that Lane's conduct was characteristic and justifiable. It may be accepted that Lane is generally of good character, but the relevant issue here is whether he is prepared to abide by the law of the land as to workplace relations and union activity.
Case: ALF No 12 Pty Ltd v Starkey [2006] QSC 297
Outcome: cited
courts have recognised the importance of access to source financial documentation in the face of conflicting financial evidence (for example, Hamilhall Pty Ltd v AT Phillips Pty Ltd [1994] FCA 1446 ; (1994) 54 FCR 173 , ALF No 12 Pty Ltd v Starkey [2006] QSC 297). However the fact that source financial documentation is not available does not mean that the Court is unable to make a determination on a question of financial position (for example, David Towney v Minister for Land &amp; Water Conservation for NSW [1997] FCA 656 , ALF No 12 Pty Ltd v Starkey [2006] QSC 297).