mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZCZF v Minister for Immigration and Citizenship [2009] FCA 208
Outcome: referred to
raises the issue of the difficulty in setting aside an order obtained by consent. There is no considered judgment of the Court to use as a yardstick to assist in determining what might have occurred; see SZCZF v Minister for Immigration and Citizenship [2009] FCA 208, where Flick J discussed other difficulties in setting aside a consent order. There is also the difficulty of the delay between the consent order in 2005 and this application some four years later. The reason for the delay is not satisfactorily explained by Mr Wharton. The evidence which is said to be new could have been adduced with appropriate questioning and the exercise of reasonable diligence by him at the trial. For the foregoing reasons the applicant's motion is dismissed with costs, to be agreed or taxed in default of agreement. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 28 July 2009 The Applicant represented himself. Counsel for the Respondents: Mr M O'Farrell SC Solicitor for the Respondents: James Crotty Barristers &amp; Solicitors Date of Hearing: 27 July 2009 Date of Judgment: 27 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/791.html
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: referred to
principles governing the grant of interlocutory relief are settled. On application for an interlocutory injunction, the applicants must show that: (a) there is a serious question to be tried in respect of the actual or threatened infringement of the patent in suit; and (b) the balance of convenience favours the grant of an interlocutory injunction, including that an award of damages would not be an adequate remedy for the irreparable harm the applicants would suffer if an interlocutory injunction were not granted. In order to demonstrate that there is a serious question to be tried, the applicants must make out a prima facie case in the sense that, if the evidence remains the same, then there is a probability that at trial they will be found entitled to relief. As Gummow and Hayne JJ explained in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 81-82 [65] - [70] , "it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial". Their Honours added at 84 [71], "the governing consideration [is] that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought". Gyles J rejected a submission to the effect that the decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 had restored the authority of Beecham in this regard. His Honour noted, correctly in my view, that the reaffirmation of Beecham by the High Court in O'Neill concerned the elucidation of what is required for a prima facie case (or serious question to be tried).
Case: AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63
Outcome: referred to
practice to which their Honours referred is no longer the practice of the courts. This much appears from the authorities to which counsel for the applicants referred me, including AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 , Genrx Pty Ltd v Sanofi-Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 , and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261. The reason for the change in practice is that the legislative requirements for grant of a patent are more exacting than they once were and include provision for opposition proceedings before the grant. In AB Hassle (33 IPR at 69-70) Ashley J specifically rejected a submission similar to that made by the respondent in this case and held that, where the defendant challenged the validity of the patent, it was for the defendant to establish a triable question in respect of validity. If a strong case for invalidity was provisionally made out, then, as his Honour said, this factor would be relevant to the exercise of discretion.
Case: Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261
Outcome: referred to
practice to which their Honours referred is no longer the practice of the courts. This much appears from the authorities to which counsel for the applicants referred me, including AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 , Genrx Pty Ltd v Sanofi-Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 , and Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 ; (2008) 79 IPR 261. The reason for the change in practice is that the legislative requirements for grant of a patent are more exacting than they once were and include provision for opposition proceedings before the grant. The applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.
Case: American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396
Outcome: cited
Genrx (73 IPR at 503-504 [2]-[6]), Gyles J again considered the ongoing significance of Beecham for the grant of interlocutory injunctions in cases of alleged patent infringement. As his Honour observed, after American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , there was a good deal of discussion about the importance of apparent differences between American-Cyanamid and Beecham . His Honour continued (at 503 [4]): The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543 ; 11 IPR 611. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group .
Case: Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595
Outcome: cited
approach is consistent with that of Sundberg J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 , where his Honour granted an interlocutory injunction in an alleged case of patent infringement, notwithstanding that he was satisfied that there was a prima facie case that the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date. See also Wake Forest University Health Sciences v Smith &amp; Nephew Pty Ltd [2009] FCA 630 at [36] and [55], where Ryan J held that there was a serious question to be tried on the issue of novelty, but granted an interlocutory injunction on the basis that the applicants had established a serious question to be tried on infringement. The applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.
Case: Wake Forest University Health Sciences v Smith &amp; Nephew Pty Ltd [2009] FCA 630
Outcome: referred to
approach is consistent with that of Sundberg J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 , where his Honour granted an interlocutory injunction in an alleged case of patent infringement, notwithstanding that he was satisfied that there was a prima facie case that the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date. See also Wake Forest University Health Sciences v Smith &amp; Nephew Pty Ltd [2009] FCA 630 at [36] and [55], where Ryan J held that there was a serious question to be tried on the issue of novelty, but granted an interlocutory injunction on the basis that the applicants had established a serious question to be tried on infringement.
Case: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405
Outcome: referred to
applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.
Case: Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397
Outcome: referred to
applicants submitted that the respondent got itself into this situation with its eyes wide open. As noted above, Ms Evans' evidence was that representatives of Shenzhen Ant had said that there were no patents that would cause any issue for the respondent in selling syringes in Australia. The applicants argued that the respondent ought to have checked the position for itself. That is, the respondent has offered for sale or sold the syringes in the knowledge that they were the subject of a patent, or in circumstances where the respondent should have known of the patent. A consideration of this kind has been weighed in the balance of convenience from time to time: see Beecham 118 CLR at 626; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 415; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at 408 [52]; Interpharma 79 IPR at 282 [77]; and Sigma Pharmaceuticals [2009] FCA 595 at [61] - [62] . There would indeed appear to be some force in the applicants' criticism of the respondent's conduct in this regard. The evidence on this point is slight, however, and I would not therefore be inclined to give this factor much weight in determining the outcome of the applicants' interlocutory injunction application.
Case: Dutton v Republic of South Africa [1999] FCA 498
Outcome: cited
The Applicant contends that there is no power to revoke the s 16 notice: Dutton v Republic of South Africa [1999] FCA 498 , 162 ALR 625 ; Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 at [108] , [2007] FCA 1684 ; 98 ALD 589 (Varied: Minister for Home Affairs v Tervonen [2008] FCAFC 24).
Case: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684
Outcome: cited
The Applicant contends that there is no power to revoke the s 16 notice: Dutton v Republic of South Africa [1999] FCA 498 , 162 ALR 625 ; Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 at [108] , [2007] FCA 1684 ; 98 ALD 589 (Varied: Minister for Home Affairs v Tervonen [2008] FCAFC 24).
Case: Deputy Commissioner of Taxation v Nicholls (No 2) [2009] FCA 234
Outcome: referred to
12 March 2009 I ruled on Mr Nicholls' claim for legal professional privilege in respect of items 001 and 015: Deputy Commissioner of Taxation v Nicholls (No 2) [2009] FCA 234. I rejected the claim for legal professional privilege in respect of the documents in item 001, but upheld the claim for legal professional privilege in respect of the documents in item 015 described in the letter of 23 October 2008 as: Term Sheet "3pm" Handwriting 6 pages (4/5/2007) Email Discussions 4 &amp; 8 May 2007/09:07am &amp; 8:11am (2 pages) Spreadsheet of Whiteboard discussions (undated) (2 pages) Paper-clip 3 pages "Nettina/Julian Gyngell" discussions re 4 May 2007 08:54am 08 May 2007 08:15am email re Citech Conference Call Mr Nicholls did not appeal from that decision. The position therefore is that, in respect of seized items 001 and 015, described on the Record of Receipt of 8 May 2008 respectively as: Item 001: 11 x A4 sheets of documents on 1 x CD "SDS CITECH EMAILS GIVEN TO THE ATO" Item 015: Folder named Product development, Folder named SDS (invoices), Folder named SDS, Folder named Shareholders CR, legal professional privilege exists in respect only of the five documents in item 015 set out in the preceding paragraph. There remained the broad claims for privilege over certain other hard copy documents seized which, on the basis of Mr Nicholls' table enclosed with his solicitor's letter of 23 October 2008, the DCT had accepted in principle that privilege existed. As to that material, on 12 May 2009 I ordered Mr Nicholls to lodge in a sealed envelope or envelopes, marked as the case may be, the redacted documents, being the copy of the hard copy seized material, a copy of which was provided to Mr Nicholls by the Registry, redacted to exclude material which Mr Nicholls claimed to be privileged.
Case: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122
Outcome: referred to
there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.
Case: Gold Securities Australia Pty Ltd v Siebe PLC (unreported, NSWSC, Giles J, 31 October 1990)
Outcome: applied
onus is on the party claiming privilege to show that the document is privileged by pointing to the nature of the document itself or by evidence describing the circumstances in which the document was brought into existence: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, and Gold Securities Australia Pty Ltd v Siebe PLC (unreported, NSWSC, Giles J, 31 October 1990).
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: applied
document is subject to legal professional privilege if it is a confidential communication between a client and the client's legal adviser, whether oral or in the form of written or other material, if it was made for the dominant purpose of submission to the legal adviser for advice (whether connected with litigation or not), or for use in existing or anticipated litigation: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 688 per Stephen, Mason and Murphy JJ. In Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, Stephen, Mason and Murphy JJ held that is for the party asserting or claiming legal professional privilege to establish the facts giving rise to it: see also National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J (Keely J agreeing). The onus is on the party claiming privilege to show that the document is privileged by pointing to the nature of the document itself or by evidence describing the circumstances in which the document was brought into existence: see Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, and Gold Securities Australia Pty Ltd v Siebe PLC (unreported, NSWSC, Giles J, 31 October 1990).
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: applied
Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689, Stephen, Mason and Murphy JJ held that is for the party asserting or claiming legal professional privilege to establish the facts giving rise to it: see also National Crime Authority v S (1991) 29 FCR 203 at 211 per Lockhart J (Keely J agreeing).
Case: Nicholls v Australian Federal Police (No 2) [2009] FCA 123
Outcome: referred to
there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.
Case: Nicholls v Australian Federal Police (No 3) [2009] FCA 152
Outcome: referred to
there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.
Case: Nicholls v Australian Federal Police [2009] FCA 15
Outcome: referred to
Nicholls challenged the validity of certain decisions concerning its grant and execution under various provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). His application was dismissed: Nicholls v Australian Federal Police [2009] FCA 15 (the first proceeding). An appeal from that decision is to be heard shortly. This is the second action. It is in response to Mr Nicholls' blanket claim to legal professional privilege over the seized material. The process of having Mr Nicholls confine his claim to those documents which are in fact privileged has been prolonged. I shall refer to certain details of that process below. It is still incomplete. The Deputy Commissioner of Taxation (DCT) lost patience and brought this proceeding, seeking an order that the DCT be entitled to inspect the seized material. Incidentally, there have been separate issues as to whether the documents on both files to which O 46 r 6(1) and (2) of the Federal Court Rules applies should be available for inspection by any member of the public. I ruled on that issue: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 and Nicholls v Australian Federal Police (No 2) [2009] FCA 123. I also ruled on an application by Mr Nicholls that certain documents be ordered to be confidential, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I refused to make such an order: Nicholls v Australian Federal Police (No 3) [2009] FCA 152.
Case: Breen v Williams (1996) 186 CLR 71
Outcome: cited
The source of the obligation imposed upon the Respondent to keep the First Applicant ("the Trustee") so informed was said to be a fiduciary duty owed by Mr Rickus. So much is apparent from the terms of the Amended Statement of Claim and from the transcript of the proceedings before Gyles J on 4 October 2007. Written submissions as filed on behalf of both the Respondent and APRA deny the existence of any such duty. Reliance was placed in those submissions inter alia upon the decision in Breen v Williams (1996) 186 CLR 71. Particular reliance was placed upon the joint judgment of Gaudron and McHugh JJ at 113. Reference may also be made to like observations made subsequently in Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165 at 197 8 by McHugh, Gummow, Hayne and Callinan JJ.
Case: Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165
Outcome: cited
The source of the obligation imposed upon the Respondent to keep the First Applicant ("the Trustee") so informed was said to be a fiduciary duty owed by Mr Rickus. So much is apparent from the terms of the Amended Statement of Claim and from the transcript of the proceedings before Gyles J on 4 October 2007. Written submissions as filed on behalf of both the Respondent and APRA deny the existence of any such duty. Reliance was placed in those submissions inter alia upon the decision in Breen v Williams (1996) 186 CLR 71. Particular reliance was placed upon the joint judgment of Gaudron and McHugh JJ at 113. Reference may also be made to like observations made subsequently in Pilmer v Duke Group Ltd [2001] HCA 31 , 207 CLR 165 at 197 8 by McHugh, Gummow, Hayne and Callinan JJ.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor (2005) 225 CLR
Outcome: followed
seems to me that this proposition would be contrary to what the High Court said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2005] HCA 72 ; (2005) 225 CLR 88 at [12] . In my opinion, the effect of what their Honours said in SZBYR at [22] was that the Tribunal's reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review. What their Honours said at [22] in SZBYR was that the need for "unbundling" is "correspondingly reduced."