mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Robinson v Compton Parkinson Ltd [1978] ICR 401
Outcome: followed
As regards the application of the principles, there are several instances where a single incident of verbal abuse has given rise to a successful claim for constructive dismissal. So, in Isle of Wight Tourist Board v Coombes [1976] IRLR 413 a director said of his secretary: "She is an intolerable bitch on a Monday morning", leading Bristow J to find there had been a constructive dismissal. In Courtaulds Northern Textiles Ltd v Anderson [1979] IRLR 84 an assistant manager said to an employee: "You can't do the bloody job anyway", not believing this to be true. Again constructive dismissal was established. In Robinson v Compton Parkinson Ltd [1978] ICR 401 an employee who was falsely accused of theft was found to have been "constructively dismissed". Likewise in Moores v Bude-Stratton Town Council [2000] IRLR 676 where an employee was called: "a lying toe-rag".
Case: Sheffield Oxford Controls Co Ltd [1979] ICR 396
Outcome: followed
I do not discount the possibility that Mr Coulson asked Mr Hem to resign. I rather think that something along those lines was suggested. Having accused him of theft it would not be surprising had Mr Coulson asked Mr Hem to resign. By the time of the conversation the ill-will between the two was significant. If Mr Hem had been asked to resign to avoid a dismissal that would be equivalent to an actual dismissal. In Sheffield Oxford Controls Co Ltd [1979] ICR 396, in delivering the judgment of the Employment Appeal Tribunal, Arnold J said (at 402): "It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon him because he prefers to resign rather than be dismissed (the alternative having been expressed to him by the employer in the terms of a threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases." 20 In the end it is not necessary for me to rule on any of the disputed aspects of the conversation between Mr Hem and Mr Coulson. The reason is that it is not in dispute that during the discussion Mr Hem was accused of being a thief. In the absence of any justification (and none was proffered) that accusation constitutes what in some cases is referred to as a "constructive dismissal".
Case: Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Outcome: applied
The second case is Thomson v Orica Australia Pty Ltd (2002) 116 IR 186. In that case Allsop J described constructive dismissal in the following terms: "Constructive dismissal is an unlawful termination of the contract of employment in circumstances where the employee leaves, without an express act or enunciation of 'dismissal' by the employer. It will be taken to be a dismissal (hence the word 'constructive') if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end. How that behaviour of the employer is to be described is at the heart of the matter. One difficulty in a simple enunciation of the common law principle is the existence of legislation and caselaw on closely related topics. However, if one is to approach the matter in straightforward contractual terms there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee." [citations omitted] Allsop J went on to state that: "Breach of that implied term will entitle the employee to treat himself or herself as wrongfully dismissed. " He cited with approval the judgments of Olsson J in Blaikie v South Australian Superannuation Board and in Easling v Mahoney Insurance Brokers Pty Ltd which he said: "expressed the principle with clarity."
Case: Clothing and Allied Trades Union v J &amp; J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26
Outcome: followed
It is appropriate to impose penalties because the relevant breaches were numerous and occurred over a period of nearly two years. I also accept the submission of counsel for the Union that the breaches were ones which offended an important regulatory regime. It is a regulatory regime designed to stop flagrant exploitation of outworkers in an industry notorious for such behaviour; see Clothing and Allied Trades Union v J &amp; J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 at 37, per Gray J. The breaches are serious and appear to have been committed in defiance of Part 9 of the Award. 31 Given the above factors, it would ordinarily be appropriate to order a high range penalty in respect of the breach of each term of the Award. However, a countervailing factor is that there is no evidence of any prior offending behaviour by Southern Cross. Also, Mr Leongue, when interviewed by Union officials did not attempt to conceal the Award breaches and co-operated with the Union.
Case: Jupiters Ltd v Neurizon Pty Ltd (2005) 222 ALR 155
Outcome: followed
It was then contended that none of the evidence of any significance was admissible or, if admissible, was of such little weight that it ought be rejected pursuant to s 135 of the Evidence Act 1995 (Cth). I agree with that submission in relation to a significant portion of the evidence namely that relating to construction of both the patent in suit and the priority document. In my opinion, that evidence does not supply technical explanations from the deponent's field of expertise that would assist in placing the Court in the position of a skilled addressee of those documents. Rather, they constitute the reading of the documents by the deponent. ( Jupiters Ltd v Neurizon Pty Ltd (2005) 222 ALR 155 at [67].) In my opinion, that evidence is not admissible and, if it were, it would be rejected pursuant to s 135 of the Evidence Act 1995 (Cth) . I do not need to make a formal ruling as to admissibility. I indicate I will not grant leave to read paragraphs 23 39 (inclusive), 46 and 52 56 (inclusive) of the affidavit. 4 Paragraphs 40 44 (inclusive) of the affidavit could conceivably be relevant to the issue of inventive step. Standing alone, they would not be sufficient to establish the point. However, the issues raised by s 7(2) and s 7(3) of the Patents Act 1990 (Cth) involve a number of factual aspects that may be proved from a number of sources. As was said in Jupiters 222 ALR 155 at [154]: " Section 7(2) of the Act refers to the hypothetical person 'skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim'. That person is wholly hypothetical. Much evidence is admissible from persons none of whom would precisely answer the statutory description. Some may be more skilled in the relevant art than others. Some may be skilled and inventive; some may be brilliant; some may be plodders; some may be aware of particular pieces of art claimed to be part of the common general knowledge and others not. It is for the Court, having admitted relevant evidence, to come to a conclusion as to the application of the section." (See also, generally, Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 ALR 202.) It is not possible to rule in advance as to that issue.
Case: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 
Outcome: cited
The role of case management is relevant. The wide scope of O 10 of the Federal Court Rules is well established (eg Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388); see also s 23 of the Federal Court of Australia Act 1976 (Cth). In my opinion, the effect of the decision of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 on case management has been exaggerated. It dealt with a special situation prevention of litigating a fairly arguable defence some months before a trial date. Even so, it may prove to be the high water mark of anti case-management philosophy, probably as a reaction to some perceived over zealous case management in New South Wales at the time. The decision in Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625; (1993) 67 ALJR 841, still needs to be considered. In any event, the evidence of one expert is not necessary to achieve the attainment of justice.
Case: Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 ALR 202
Outcome: cited
Paragraphs 40 44 (inclusive) of the affidavit could conceivably be relevant to the issue of inventive step. Standing alone, they would not be sufficient to establish the point. However, the issues raised by s 7(2) and s 7(3) of the Patents Act 1990 (Cth) involve a number of factual aspects that may be proved from a number of sources. As was said in Jupiters 222 ALR 155 at [154]: " Section 7(2) of the Act refers to the hypothetical person 'skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim'. That person is wholly hypothetical. Much evidence is admissible from persons none of whom would precisely answer the statutory description. Some may be more skilled in the relevant art than others. Some may be skilled and inventive; some may be brilliant; some may be plodders; some may be aware of particular pieces of art claimed to be part of the common general knowledge and others not. It is for the Court, having admitted relevant evidence, to come to a conclusion as to the application of the section." (See also, generally, Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 ALR 202.) It is not possible to rule in advance as to that issue.
Case: Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625; (1993) 67 ALJR 841
Outcome: cited
The role of case management is relevant. The wide scope of O 10 of the Federal Court Rules is well established (eg Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388); see also s 23 of the Federal Court of Australia Act 1976 (Cth). In my opinion, the effect of the decision of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 on case management has been exaggerated. It dealt with a special situation prevention of litigating a fairly arguable defence some months before a trial date. Even so, it may prove to be the high water mark of anti case-management philosophy, probably as a reaction to some perceived over zealous case management in New South Wales at the time. The decision in Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625; (1993) 67 ALJR 841, still needs to be considered. In any event, the evidence of one expert is not necessary to achieve the attainment of justice.
Case: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 
Outcome: discussed
The role of case management is relevant. The wide scope of O 10 of the Federal Court Rules is well established (eg Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388); see also s 23 of the Federal Court of Australia Act 1976 (Cth). In my opinion, the effect of the decision of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 on case management has been exaggerated. It dealt with a special situation prevention of litigating a fairly arguable defence some months before a trial date. Even so, it may prove to be the high water mark of anti case-management philosophy, probably as a reaction to some perceived over zealous case management in New South Wales at the time. The decision in Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625; (1993) 67 ALJR 841, still needs to be considered. In any event, the evidence of one expert is not necessary to achieve the attainment of justice.
Case: Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1
Outcome: referred to
Whether s 117 can apply to a process or method claim, where no product results from the use of the method or process, may be an open question. GenRx says that the Patentees' rights are restricted by paragraph (b) in the definition of " exploit " referred to above, namely, to use the method or process or do any acts mentioned in paragraph (a) in respect of a product resulting from such use (see Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 at 24). 87 In any event, GenRx says, it cannot be said that the GenRx products are capable of only one reasonable use. Carvedilol is indicated for the treatment of hypertension and treatment of patients with symptomatic mild to severe congestive heart failure. That is the claim made by GenRx in the product information document published in respect of the GenRx products. 88 Further, carvedilol is a useful and beneficial medication for treating the symptoms of congestive heart failure itself. One of the major advantages of carvedilol is that a decrease in heart rate may be achieved, which immediately provides a significant symptomatic benefit to the patient. The information published by the Patentees in respect of DILATREND indicates that administration of carvedilol will cause a significant reduction in systematic blood pressure and heart rate and that it has been shown to reduce cardiovascular hospitalisation, improve patient well being and slow the progression of congestive heart failure. GenRx says, therefore, that they are reasonable uses for carvedilol that are not decreasing mortality.
Case: Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218
Outcome: referred to
In proceedings in the Court in 2005, the Patentees alleged infringement of the Patent by Hexal Australia Pty Limited and Alphapharm Pty Limited, other threatened suppliers of carvedilol products. Stone J examined grounds of invalidity raised in those proceedings and concluded that there was a serious question to be tried as to whether the Patent is valid and as to whether there was infringement by those parties (see Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218). However, Stone J concluded that there was no likelihood of irreparable injury that could not be adequately compensated by an order form damages or an account and refused interlocutory relief on the basis of the balance of convenience. Those proceedings have now been settled.
Case: Re BA's Application (1915) 32 RPC 348
Outcome: referred to
GenRx says that Claims 8 and 21 do no more than describe a mere new use for an old thing. Once a substance is known, its methods of production ascertained, its characteristics and its constituents well defined, the use of that substance for a purpose that was hitherto unknown cannot be patented ( Re BA's Application (1915) 32 RPC 348 at 349). 71 GenRx also contends that none of the Claims can amount to any more than a direction to doctors and pharmacists on how to treat the patients with carvedilol. GenRx says that the only new component of the Claims is the reference to the fact that the treatment is ' for decreasing mortality ' and says that the fact that treatment with carvedilol may decrease mortality is a mere discovery, since it is an inherent feature of carvedilol. GenRx says that the only act apparently done in relation to the invention was to provide some funding for trials that comprised long-term treatment with known compounds in known dosages for a known condition. GenRx contends that, at most, what is disclosed is mere confirmation of the existing properties of carvedilol in known dosages. 72 There is cogency in GenRx's arguments. However, they raise questions of law that it may be inappropriate to resolve in an interlocutory proceeding such as the present.
Case: Rescare Limited v Anaesthetic Supplies Pty Limited (1992) 25 IPR 119
Outcome: referred to
Under s 18(1)(c) of the Patents Act , a claimed invention will not be a patentable invention unless it is useful. A claim for an invention will not be useful if the invention as claimed, does not meet one or more of the stated objectives of the invention. There will be inutility of a claim if the invention of that claim fails to meet the result promised for it by the Patent ( Rescare Limited v Anaesthetic Supplies Pty Ltd (1992) 25 IPR 119 at 143). 74 GenRx again draws attention to the terms of the Claims that do not disclose a dosage regimen. GenRx says that there is no evidence that carvedilol has any beneficial effect on mortality or otherwise unless it is administered according to the specified regimen over a sufficient period of time. However, it is for GenRx to establish lack of utility. It is not incumbent upon the Patentees to establish that the claimed invention works. GenRx says that the evidence indicates that only administration according to a regimen such as is described in Claims 8 and 21 will have any effect. However, while some claims may be challenged on that basis, Claims 8 and 21 would not be subject to that challenge and would be sufficient to support the allegation of infringement. 75 In relation to Claims 8 and 21, GenRx points out that there is a reference to the final administration as ' a maintenance dose ', the Claims do not specify in terms that the maintenance dose must be continued for a period in the order of 100 days. It points to evidence that such continued dosage is required for effectiveness. However, it is tolerably clear that the reference to maintenance dose means that that dosage is maintained indefinitely. Indefinite maintenance of the dose is shown to have a beneficial effect on mortality.
Case: Rawley Pty Ltd v Bell (No 2) [2007] FCA 583
Outcome: cited
When I handed down my decision in Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 , such was my dissatisfaction with the course and conduct of this matter that I indicated a provisional inclination not to make orders as to costs in either of the applications that I had there dismissed. Nonetheless, I invited the parties to put on submissions as to costs. They did so voluminously, save for Mr Bell who indicated he would abide by the orders of the Court. Having considered the parties submissions and having reviewed the costs issues in light of what are well accepted principles that properly inform the exercise of my discretion under s 43 of the Federal Court of Australia Act 1976 (Cth), I am satisfied that to deny the successful respondents any costs at all would, in the circumstances, be punitive. It is not a proper use of the power to award costs to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
When I handed down my decision in Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 , such was my dissatisfaction with the course and conduct of this matter that I indicated a provisional inclination not to make orders as to costs in either of the applications that I had there dismissed. Nonetheless, I invited the parties to put on submissions as to costs. They did so voluminously, save for Mr Bell who indicated he would abide by the orders of the Court. Having considered the parties submissions and having reviewed the costs issues in light of what are well accepted principles that properly inform the exercise of my discretion under s 43 of the Federal Court of Australia Act 1976 (Cth), I am satisfied that to deny the successful respondents any costs at all would, in the circumstances, be punitive. It is not a proper use of the power to award costs to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Outcome: cited
It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Nonetheless, it is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).
Case: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and cannot be exercised on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. Nonetheless, it is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).