mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Stack v Brisbane City Council (1999) 47 IPR 525
Outcome: cited
The respondents also contend that, having regard to the use of the present tense in s 138(3)(a), a condition precedent to a revocation order is a finding that the patentees were not entitled to the patent at the time of the application for revocation (or perhaps at the time of the hearing). I am far from persuaded that this construction is correct and it seems to be contrary to the views of Cooper J in Stack v Brisbane City Council (1999) 47 IPR 525, 536 and Crennan J in JMBV Enterprises Pty Ltd v Camoflag Pty Ltd [2005] FCA 1474 , [130]-[131]. But even if this construction were correct, the way in which I would read the section is that if a person were not entitled to the patent at the time of grant then, at least in most cases, that non-entitlement would be (as here) a continuing state of affairs. So there is really nothing in the point.
Case: Stewart v Tenk , 32 F 665 (1887)
Outcome: cited
The application of these principles leads inevitably to the following rules which, I am entitled to assume, were likely known to Mr Higgins. First, a valid patent can only be granted to the real inventor and if there be more than one inventor it must be granted to all: Thomas v Weeks , 2 Paine 92 (1827); Barrett v Hall , 2 F Cas 914 (1818); Carter v Perry , 8 OG 518 (1875). Second, in the case of a joint invention, a patent issued to only one of the inventors is void: Ex parte Barsaloux, James and Lyon , 16 OG 233 (1878); American Electrical Novelty &amp; Manufacturing Co v Newgold , 108 F 957 (1901) aff'd 113 F 877 (1902). Third, a patent issued in the names of joint patentees will, unless all of them are the inventors, also be void: Stewart v Tenk , 32 F 665 (1887); Hotchkiss v Greenwood , 12 F Cas 551 (1848); Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900). See also W Robinson, The Law of Patents , vol 1 (1890) 570-573.
Case: Thomas v Weeks , 2 Paine 92 (1827)
Outcome: cited
The application of these principles leads inevitably to the following rules which, I am entitled to assume, were likely known to Mr Higgins. First, a valid patent can only be granted to the real inventor and if there be more than one inventor it must be granted to all: Thomas v Weeks , 2 Paine 92 (1827); Barrett v Hall , 2 F Cas 914 (1818); Carter v Perry , 8 OG 518 (1875). Second, in the case of a joint invention, a patent issued to only one of the inventors is void: Ex parte Barsaloux, James and Lyon , 16 OG 233 (1878); American Electrical Novelty &amp; Manufacturing Co v Newgold , 108 F 957 (1901) aff'd 113 F 877 (1902). Third, a patent issued in the names of joint patentees will, unless all of them are the inventors, also be void: Stewart v Tenk , 32 F 665 (1887); Hotchkiss v Greenwood , 12 F Cas 551 (1848); Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900). See also W Robinson, The Law of Patents , vol 1 (1890) 570-573.
Case: Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900)
Outcome: cited
The application of these principles leads inevitably to the following rules which, I am entitled to assume, were likely known to Mr Higgins. First, a valid patent can only be granted to the real inventor and if there be more than one inventor it must be granted to all: Thomas v Weeks , 2 Paine 92 (1827); Barrett v Hall , 2 F Cas 914 (1818); Carter v Perry , 8 OG 518 (1875). Second, in the case of a joint invention, a patent issued to only one of the inventors is void: Ex parte Barsaloux, James and Lyon , 16 OG 233 (1878); American Electrical Novelty &amp; Manufacturing Co v Newgold , 108 F 957 (1901) aff'd 113 F 877 (1902). Third, a patent issued in the names of joint patentees will, unless all of them are the inventors, also be void: Stewart v Tenk , 32 F 665 (1887); Hotchkiss v Greenwood , 12 F Cas 551 (1848); Welsbach Light Co v Cosmopolitan Incandescent Gaslight Co , 100 F 648 (1900). See also W Robinson, The Law of Patents , vol 1 (1890) 570-573.
Case: RD Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Outcome: cited
There is no doubt that, the "sunset" order made on 17 May 2007 not yet having led to the proceeding being dismissed, the Court has power under O 35 r 7(2) or under O 28 r 5 to set aside that order: see RD Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 or to extend the time to appeal from the further orders for security for costs made on 14 February 2007. Although generally the power to set aside a judgment or order should be sparingly exercised (see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 550-552), I think the power is more readily exercised in the case of an interlocutory order where the public interest in the finality of litigation does not weigh so heavily in the scales.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Outcome: cited
There is no doubt that, the "sunset" order made on 17 May 2007 not yet having led to the proceeding being dismissed, the Court has power under O 35 r 7(2) or under O 28 r 5 to set aside that order: see RD Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 or to extend the time to appeal from the further orders for security for costs made on 14 February 2007. Although generally the power to set aside a judgment or order should be sparingly exercised (see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 550-552), I think the power is more readily exercised in the case of an interlocutory order where the public interest in the finality of litigation does not weigh so heavily in the scales.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68
Outcome: cited
However, this is not a case where the applicant can assert that it has not had a proper opportunity either to address the applications for further security for costs or, those orders having been made, to address the applications that the proceeding be dismissed for it having failed to pay the further security for costs ordered. That it did not participate in the hearing on 17 May 2007 was a matter for it. Even in respect of that hearing, it does not profess inadvertence or ignorance (although Ms Watson herself may not have known of that hearing): see e.g. Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71; Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672 at 684.
Case: Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672
Outcome: cited
However, this is not a case where the applicant can assert that it has not had a proper opportunity either to address the applications for further security for costs or, those orders having been made, to address the applications that the proceeding be dismissed for it having failed to pay the further security for costs ordered. That it did not participate in the hearing on 17 May 2007 was a matter for it. Even in respect of that hearing, it does not profess inadvertence or ignorance (although Ms Watson herself may not have known of that hearing): see e.g. Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71; Wentworth v Woollahra Municipal Council [1982] HCA 41 ; (1982) 149 CLR 672 at 684.
Case: Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435
Outcome: cited
Accordingly, subject to considering the applicant's second and third contentions, I am not persuaded that it should be granted a further extension of time within which to appeal from the further security for costs orders made on 14 February 2007. In brief, it has not explained the delay satisfactorily at all. It has not demonstrated any relevant significant change in circumstances, even if the Deumer Asia letter of 15 July 2007 were to be permitted to be adduced in evidence on the appeal (as to which see e.g. Council of the City of Greater Wollongong v Cowan [1955] HCA 16 ; (1955) 93 CLR 435 at 444). It has not explained, in any event, why that letter could not have been procured much earlier. It has not sought to have the security for costs orders discharged. It is clearly, and admittedly, unable to pay the further security for costs orders and will be unable to meet any costs of the respondents if the matter proceeds to hearing and the applicant is unsuccessful. 28 Nor has any reason been identified of any substance as to why the orders of 14 February 2007 for further security for costs might be set aside on appeal. There is no draft notice of appeal, nor anything identifying error. 29 The second matter argued by the applicant relates to matters taken into account when the further security for costs orders were made. It is not a new argument. It is discussed in Cosdean (No 2) [2007] FCA 163 at [12] [14].
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
In my view, the second and third matters raised by the applicant may be seen as errors asserted by the applicant in the making of the further security for costs orders on 14 February 2007. Otherwise, they are simply an attempt to re-argue matters which have already been argued. I shall also therefore consider whether those matters might demonstrate some arguable prospect of success if an extension of time to appeal from those orders were granted. I do not think these matters demonstrate a relevant mistake of fact in considering the potential award of damages, in considering the capacity of the applicant to fund the second tranche of key rings as discussed in Cosdean (No 2) [2007] FCA 163at [12] [14]. Nor do I think that they otherwise provide an arguable basis for error from the discretionary judgment to impose the further security for costs orders upon the applicant: See House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 505. 34 For those reasons, I do not consider that the applicant should be granted a further extension of time within which to appeal from the further security for costs orders made on 14 February 2007, or from the order presently staying the proceeding until the further security for costs was paid, made on 19 February 2007. 35 I am further of the view, having regard to the conclusion I have reached that there should be no extension of time within which to appeal from the further security for costs orders, and having regard to the accepted inability of the applicant to comply with those orders by providing further security for costs, that the orders made on 17 May 2007 should not be discharged. The applicant is faced with further orders for security for costs. It cannot satisfy them. It acknowledges that. The proceedings have been permanently stayed. In those circumstances, nothing has been shown to indicate that the orders dismissing the proceedings against each of the respondents were inappropriate in the first place, or should now be discharged.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: referred to
it cannot be said that the delay between the date of the delegate's decision and the date upon which the Tribunal heard and determined the matter affected the Tribunal's reasoning processes. It seems to me therefore that the Tribunal complied with its obligations under s 425 of the Act and that there was no denial of procedural fairness. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [25] : What is required by procedural fairness is a fair hearing, not a fair outcome. ... The relevant question is about the Tribunal's processes, not its actual decision. The High Court's observations seem to me to be apt in the present case. Moreover, I do not see that the delay between the appellant's date of arrival in Australia and the date upon which the Tribunal dealt with the matter can be said to give rise to any ground of review. The appellant complained that he had forgotten the relevant facts which occurred in 1995, but as the High Court observed in SZBEL at [40]: [I]t is for the applicant for a protection visa to establish the claims that are made out. This is not a case in which the appellant was affected by any disparity between the issues considered to be dispositive by the delegate and the issues which arose in relation to the decision under review. Here it appears that the appellant's claim before the delegate had a different basis to the claim which he put before the tribunal in the written statement to which I have referred above.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609
Outcome: referred to
it cannot be said that there was any breach of s 424A of the Act because the information upon which the Tribunal relied was not "information" within the meaning of section 424A(1): see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [18] . It follows that the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobsson. Associate: Dated: 24 April 2009 The Appellant was self-represented. Counsel for the Respondents: P. Reynolds Solicitor for the Respondents: Clayton Utz Date of Hearing: 22 April 2009 Date of Judgment: 22 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/409.html
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Outcome: referred to
The requirement that a notice of an appeal from the Tribunal state a question of law has been considered in numerous cases. As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself." Order 53 r 3(2) of the Rules requires that the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal be stated separately: compare Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 per Branson and Stone JJ, with whom Marshall J relevantly agreed at 67; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-301 per Branson J; and Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 563-565 per Sundberg and Kenny JJ and 570-571 per Gyles J (dissenting).
Case: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
Outcome: referred to
The requirement that a notice of an appeal from the Tribunal state a question of law has been considered in numerous cases. As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself." Order 53 r 3(2) of the Rules requires that the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal be stated separately: compare Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 per Branson and Stone JJ, with whom Marshall J relevantly agreed at 67; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-301 per Branson J; and Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 563-565 per Sundberg and Kenny JJ and 570-571 per Gyles J (dissenting).
Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290
Outcome: referred to
The requirement that a notice of an appeal from the Tribunal state a question of law has been considered in numerous cases. As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself." Order 53 r 3(2) of the Rules requires that the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal be stated separately: compare Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 per Branson and Stone JJ, with whom Marshall J relevantly agreed at 67; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-301 per Branson J; and Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 563-565 per Sundberg and Kenny JJ and 570-571 per Gyles J (dissenting).
Case: Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551
Outcome: referred to
The requirement that a notice of an appeal from the Tribunal state a question of law has been considered in numerous cases. As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, "[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself." Order 53 r 3(2) of the Rules requires that the question of law to be raised by the appeal and the grounds relied on in support of the order sought on the appeal be stated separately: compare Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60 per Branson and Stone JJ, with whom Marshall J relevantly agreed at 67; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-301 per Branson J; and Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 563-565 per Sundberg and Kenny JJ and 570-571 per Gyles J (dissenting).
Case: McGregor v Chief Executive Officer of Centrelink [2000] FCA 701
Outcome: discussed
I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.
Case: Zoia v Administrative Appeals Tribunal [2003] FCA 303
Outcome: cited
I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.
Case: Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272
Outcome: cited
I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.
Case: Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2000) 220 CLR 129
Outcome: cited
The pecuniary penalties which the Act applies are punitive in nature. Their character is not adequately described by the rather anodyne term 'protective' Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [35] [37], [41] [43] and [99]. Consistently with the characterisation as punitive the object of the penalties is general and specific deterrence. That is the deterrence of those who might be tempted not to comply with the law and the deterrence of the particular contravenor who might be tempted to re-offend Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583 at 608 (Cooper J), Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 114 (Santow J).
Case: Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583
Outcome: cited
The pecuniary penalties which the Act applies are punitive in nature. Their character is not adequately described by the rather anodyne term 'protective' Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [35] [37], [41] [43] and [99]. Consistently with the characterisation as punitive the object of the penalties is general and specific deterrence. That is the deterrence of those who might be tempted not to comply with the law and the deterrence of the particular contravenor who might be tempted to re-offend Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583 at 608 (Cooper J), Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 114 (Santow J). 91 In Donovan Cooper J was concerned with the application of penalties under s 1317EA(3)(b). He said of the section that: 'Its purpose in an appropriate case is to punish, but principally imposition of a pecuniary penalty is to act as a personal deterrent and a deterrent to the general public against a repetition of like conduct.' The same approach was adopted by Santow J in Adler in which his Honour said (at [125]): 'It is well established that the principal purpose of a pecuniary penalty is to act as a personal deterrent and a deterrent to the general public against a repetition of like conduct.'