mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NSI Dental Pty Ltd v University of Melbourne (2006) 69 IPR 542
Outcome: cited
final ground of revocation involves a contention that SBriggs obtained the patent by fraud, false suggestion or misrepresentation ([11], s 138(3)(d) of the Patents Act ) and that the amendment to the patent ([12], [17], [18], [56] and [57]; s 138(3)(e) of the Patents Act ) was also obtained by fraud, false suggestion or misrepresentation. The question is whether the conduct of SBriggs said to bear the character required by the section, materially contributed to the Commissioner's decision to grant the patent or amend the claims. It is sufficient if the conduct is a material inducing factor which led to either of those outcomes ( Prestige Group (Australia) Pty Ltd v Dart Industries Inc. (1990) 26 FCR 197 ; Pfizer (supra); JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68). Sections 138(3)(d) and 138 (3)(e) do not require proof of a deliberate intention on the part of the applicant for the patent (or amendment) to deceive the Commissioner ( Pfizer ). If the representation is based upon a belief, it is relevant to consider whether the belief is false or not held reasonably ( NSI Dental Pty Ltd v University of Melbourne (2006) 69 IPR 542).
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: cited
The grounds in a notice of appeal from the Tribunal "would properly assume the resolution of the question of law in favour of the applicant": Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 per Ryan J. Such grounds should show "the links between the question of law, the circumstances of the particular case and the orders sought on the appeal": Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at [18] per Branson and Stone JJ (with whom Marshall J at [61] agreed).
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: cited
The grounds in a notice of appeal from the Tribunal "would properly assume the resolution of the question of law in favour of the applicant": Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 per Ryan J. Such grounds should show "the links between the question of law, the circumstances of the particular case and the orders sought on the appeal": Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at [18] per Branson and Stone JJ (with whom Marshall J at [61] agreed).
Case: Brennan v Comcare (1994) 50 FCR 555
Outcome: cited
Under s 24 of the 1988 Act, Comcare is liable to pay compensation to an employee where they suffer an injury that results in permanent impairment. Section 124 is a transitional provision setting out the compensation payable under the 1998 Act in respect of impairment occurring prior to its commencement. Section 124(3) provides that a person is not entitled to compensation under s 24 of the 1988 Act in respect of a permanent impairment where there was no entitlement to receive lump sum compensation under the legislation in force at the time the impairment occurred. Under the previous legislation relevant to the applicant, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), no lump sum compensation was payable for permanent loss arising from a psychiatric condition because such a condition was not among the various forms of "loss", such as loss of hearing or loss of an arm at or above the elbow, specified in s 39. It was thus accepted that the applicant's impairment, once it had become permanent, would be compensable by way of lump sum under the 1988 Act but not the 1971 Act. The time at which the applicant's impairment became permanent and the legislation in force at the time therefore determines whether the applicant is entitled to compensation: Brennan v Comcare (1994) 50 FCR 555 at 570. 3 An impairment is permanent if it is likely to continue indefinitely: 1988 Act, s 4. That state of affairs must have been reached before the commencement date of the 1988 Act for s 124(3) to apply: Brennan v Comcare at 570. In the present case, the degree of the applicant's impairment was not in issue. It would be a matter for primary assessment by Comcare in the event of the applicant succeeding on this appeal. 4 Comcare submitted to the Tribunal that the applicant's condition had become permanent before 1 December 1988 and had not deteriorated or become worse thereafter so as to provide a basis for a claim based on a new impairment. 5 The applicant is aged 52. From the age of 19 she worked in a clerical position with the Commonwealth Public Service. In 1981 she transferred to the Social Security branch office at Glenorchy working in clerical and counter duties. Later she was promoted to a position involving regular face to face contact with benefit recipients and applicants. From time to time some of these individuals became stressed and angry and would be abusive and threatening. Sometimes such individuals recognised the applicant when she was away from the office and would insult her and behave offensively.
Case: Comcare v Levett (1995) 60 FCR 14
Outcome: referred to
Counsel for the applicant referred to Comcare v Levett (1995) 60 FCR 14 at [18]-[19]. In that case the employee had suffered a compensable injury to his back before 1 December 1988 which resulted in impairment, but not a permanent impairment. After that date the impairment became permanent. The Full Court held that he was not excluded from receiving compensation by s 124(3). 44 Counsel for the applicant contended that, by a parity of reasoning, the same result would follow if the applicant's injury was not permanent before the relevant date, improved thereafter, but still later became worse and permanent. Counsel pointed to Dr Sale's opinion already noted that in his examination in 1990 the applicant was not incapacitated for work. Counsel said that it was "a startling non sequitur" that since the applicant was permanently impaired in 2007 she must have been permanently impaired on 1 December 1988 even though she was not impaired in 1990. This arose, counsel said, from confusion between the concepts of injury and impairment. Section 24(2)(b) of the 1988 Act requires, for the purpose of determining whether an impairment is permanent, regard to be had to the likelihood of an improvement. Therefore it is not possible to say with the benefit of hindsight that because the worker is now impaired she must have been always impaired. 45 However, as previously noted, the impairment must have been permanent, that is to say likely to continue indefinitely, and that state of affairs must have been reached before the commencement date of the 1988 Act, if the applicant is to be excluded from lump sum compensation under that Act.
Case: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: cited
On its face the notice of appeal does raise a question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Whether facts fully found fall within the provisions of a statute properly construed is usually a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7. The formal requirement for a notice of appeal specified in O 53 r 3(2)(b) of the Federal Court Rules has been satisfied.
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
However, as noted by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178, in comparing the requirements of s 44 with the former provisions for appeals to the Taxation Board of Review: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself...
Case: CPSU, the Community and Public Sector Union v Commonwealth of Australia [2007] FCA 1397 
Outcome: cited
On 6 September 2007 I published reasons for judgment in this matter: CPSU, the Community and Public Sector Union v Commonwealth of Australia [2007] FCA 1397. I concluded that the circulation of certain memoranda of advice by the Department of Employment and Workplace Relation ('the DEWR Advice') resulted in contravention by the Commonwealth of s 298K(1) of the Workplace Relations Act 1996 (Cth) ('the WR Act'). I also concluded that by denying the second and fifth applicants approval to access leave on 15 November 2005 because they proposed to attend the Day of Protest organised to demonstrate opposition to proposed amendments to the WR Act, the Commonwealth breached two industrial instruments, namely the Australian Customs Service Certified Agreement 2004-2007 ('the ACS Agreement') and the Stay Here and Grow DEST Certified Agreement 2002-2005 ('the DEST Agreement'). 2 The proceeding was stood over to a date to be fixed for the purpose of making orders giving effect to my reasons for judgment and orders as to the penalties, if any, appropriate to be imposed. The parties were directed to provide to my Associate, if possible, an agreed minute as to the orders to be made (other than as to penalties) and written submissions on the order or orders, if any, as to penalty which they respectively contended should be made. The parties were invited to indicate in their respective written submissions if they sought a further oral hearing. Neither party so indicated.
Case: CPSU, the Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 
Outcome: cited
The question of whether a single act which has an impact on a number of employees in a manner proscribed by s 298K(1) of the WR Act results in one contravention or in a contravention in respect of each affected employee is answered by authority that I should follow; the number of contraventions equals the number of affected employees (see particularly Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [41] and CPSU, the Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at [3]). 23 Orders are commonly made that a penalty imposed under the WR Act be paid to an industrial organisation where that organisation instituted the proceeding in question to protect the legitimate interests of its individual members (see CPSU v Telstra at [20]-[28]). In this case the Commonwealth, understandably in the circumstances, did not seek an order that any penalty imposed be paid into the Consolidated Revenue Fund. 24 It will be ordered that the penalty imposed be paid to the CPSU. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 30 October 2007 Counsel for the Applicant: Ms C Howell Solicitor for the Applicant: Slater &amp; Gordon Counsel for the Respondent: Mr S D Robb QC and Mr R F Crow Solicitor for the Respondent: Australian Government Solicitor Date of Judgment: 30 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1634.html
Case: Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404
Outcome: cited
The question of whether a single act which has an impact on a number of employees in a manner proscribed by s 298K(1) of the WR Act results in one contravention or in a contravention in respect of each affected employee is answered by authority that I should follow; the number of contraventions equals the number of affected employees (see particularly Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [41] and CPSU, the Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at [3]). 14 In Commonwealth Bank of Australia v Finance Sector Union of Australia at [181] I observed: "The authorities accept that the matters to be taken into account in determining whether particular conduct under the Act calls for the imposition of a penalty, and assuming that it does, the amount of the penalty, include: (a) the circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act); (b) whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act; (c) where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (d) the consequences of the conduct found to be in contravention of Pt XA of the Act; (e) the need, in the circumstances, for the protection of industrial freedom of association; and (f) the need, in the circumstances, for deterrence. ( Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [8]; Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 728 at [5] ; Employment Advocate v National Union of Workers (2000) 99 IR 376 at 377 at [5]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175 at [10]; Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375 ; (2004) 136 FCR 530 at [44] ; and Alfred v Walter Construction Group Ltd [2005] FCA 497 at [10] .)'
Case: Allstate Life Insurance Co and Ors v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459
Outcome: cited
Allstate Life Insurance Co and Ors v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459 , where the respondents had been successful in meeting appeals dealing with a discrete question and the Court had ordered that the appellants pay the respondents' costs of the appeals, Lockhart, Lindgren and Tamberlin JJ observed: [4] The proceeding has been set down for hearing commencing on 18 March 1996 and unless settled may subsist for a substantial time. The litigation is complex. It is unlikely that final judgment will be given until late 1996 or even later. The successful parties to the appeals before this Court will therefore, in the ordinary course of events, not recover their costs for a long time. [5] It would be wrong if the successful parties do not enjoy the fruits of their order for costs for such a long time. The parties entitled to the benefit of the order for costs which this Court has made in appeals from interlocutory orders should not be deprived of that benefit until the case has been finally disposed of. In my view similar principles apply in this case. The respondents, who were successful in respect of issues arising in relation to Pt A para 7 of the application, have incurred costs to which they are now entitled. The applicant's claims in the substantive proceedings will not be heard until early 2010. There is no justification for leaving a determination of costs arising from the separate hearing of Pt A para 7 of the application until that time. 2. Basis of costs award The respondents submit that they should both be entitled to an award of costs on an indemnity basis. Mr Troy Thomas In relation to Mr Troy Thomas, the applicant submits that there was no basis for a claim that Mr Thomas had incurred separate costs and in any case that an award of costs should not be on an indemnity basis. However the respondents submit that:
Case: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225
Outcome: cited
is well settled that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 , De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77. Although the usual rule is that costs be awarded against the unsuccessful party on a party-party basis, the Court has a discretion to award costs on an indemnity basis in appropriate cases: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234. Circumstances where the Court may consider awarding costs on an indemnity basis include: As I observed in the judgment, notwithstanding that Mr Troy Thomas was required to meet the proceedings, HFAT did not open a case against him, nor did HFAT produce evidence in support of its claims against him in terms of Pt A para 7. Indeed, the applicant conceded in its submissions that, given the state of the evidence, there was no sufficient basis for an order against Mr Troy Thomas in relation to this aspect of the application. I consider that the claims against Mr Troy Thomas in terms of Pt A para 7 were of the nature described in Colgate-Palmolive (1993) 46 FCR and InterTAN [2005] FCAFC 54 , namely allegations which ought never to have been made, and which had no chance of success. Taking this view, and particularly in light of the fact that Mr Troy Thomas was required to take steps to defend himself against the applicant's case including engaging legal representation, I consider that the case against Mr Troy Thomas exhibits special features justifying the Court exercising its discretion to order costs incurred by him to be paid on an indemnity basis. Mr Rhys Thomas
Case: De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77
Outcome: cited
is well settled that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 , De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77. Although the usual rule is that costs be awarded against the unsuccessful party on a party-party basis, the Court has a discretion to award costs on an indemnity basis in appropriate cases: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234. Circumstances where the Court may consider awarding costs on an indemnity basis include:
Case: Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas (No 2) [2009] FCA 1084
Outcome: cited
Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas (No 2) [2009] FCA 1084 ("the judgment") I dismissed the claim of the applicant. The applicant sought relief pursuant to Pt A para 7 of the application filed 13 May 2007. After delivering judgment I ordered the parties to file and serve separate submissions as to costs incurred in respect of hearings leading to the judgment. Except as provided by any other Act, the award of costs is in the discretion of the Court: s 43(2) of the Federal Court of Australia Act 1976 (Cth). Two clear issues for determination arise from these submissions. They are: Whether costs should be reserved until the conclusion of the substantive proceedings; and In light of the concession of the applicant that costs should follow the event whether the respondents' costs should be awarded on a party-party basis or an indemnity basis. 1. Should costs be reserved? The applicant has submitted that costs should be reserved to the trial of the balance of the proceedings, when the Court will have a more extensive understanding of the parties' conduct, and will be able to form a more informed and balanced view of where costs should ultimately fall.
Case: InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54
Outcome: cited
I observed in the judgment, notwithstanding that Mr Troy Thomas was required to meet the proceedings, HFAT did not open a case against him, nor did HFAT produce evidence in support of its claims against him in terms of Pt A para 7. Indeed, the applicant conceded in its submissions that, given the state of the evidence, there was no sufficient basis for an order against Mr Troy Thomas in relation to this aspect of the application. I consider that the claims against Mr Troy Thomas in terms of Pt A para 7 were of the nature described in Colgate-Palmolive (1993) 46 FCR and InterTAN [2005] FCAFC 54 , namely allegations which ought never to have been made, and which had no chance of success. Taking this view, and particularly in light of the fact that Mr Troy Thomas was required to take steps to defend himself against the applicant's case including engaging legal representation, I consider that the case against Mr Troy Thomas exhibits special features justifying the Court exercising its discretion to order costs incurred by him to be paid on an indemnity basis. Mr Rhys Thomas
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
is well settled that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 , De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77. Although the usual rule is that costs be awarded against the unsuccessful party on a party-party basis, the Court has a discretion to award costs on an indemnity basis in appropriate cases: Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234. Circumstances where the Court may consider awarding costs on an indemnity basis include:
Case: Schmid v Comcare [2003] FCA 1057
Outcome: cited
I should state at the outset, as has been acknowledged by others: see Schmid v Comcare [2003] FCA 1057 at par [53] ; there is a high threshold for treating a finding of fact as giving rise to an error of law. I would note that in Roads Corporation v Dacakis (1995) 2 VR 508 at 520 it was said: "... a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will only be open to challenge as being erroneous in law if it was not reasonably open on the facts": emphasis in original. I emphasise this matter because an appeal to this Court under s 44 can only be made on a question of law.
Case: Roads Corporation v Dacakis (1995) 2 VR 508
Outcome: referred to
I should state at the outset, as has been acknowledged by others: see Schmid v Comcare [2003] FCA 1057 at par [53] ; there is a high threshold for treating a finding of fact as giving rise to an error of law. I would note that in Roads Corporation v Dacakis (1995) 2 VR 508 at 520 it was said: "... a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will only be open to challenge as being erroneous in law if it was not reasonably open on the facts": emphasis in original. I emphasise this matter because an appeal to this Court under s 44 can only be made on a question of law.
Case: Chu v Telstra Corporation Ltd [2005] FCA 1730 ; (2005) 147 FCR 505
Outcome: referred to
I pause at this point to note that the condition in s 24A(a) is not expressed in terms of the agency or Minister being satisfied that reasonable steps have been taken, and that raises a question as to whether the condition involves a jurisdictional fact. That question was addressed by Finn J in Chu v Telstra Corporation Ltd [2005] FCA 1730 ; (2005) 147 FCR 505 and, for the reasons his Honour gives (with which I respectfully agree), the judgment as to the requirement in s 24A(a) is for the agency or Minister in question and, upon review, for the Tribunal, and not ultimately for the Court. 9 Under s 55 of the FIO Act, the applicant sought a review of the decision by the Tribunal. As I have said, the Tribunal affirmed the decision under review. 10 On 17 August 2005, the applicant limited his application to the Tribunal to his request for documents said to have been provided by him to the respondent in 1991. His description of the documents is as follows: '... documents [that] were given to me by the Queensland Police after I had complained to the Fitzgerald Inquiry. Australian Federal Police wanted to know about my involvement with Operation Maitita an undercover role that I had played to trap some members of the Ananda Marga sect implicated allegedly in the 1978 Hilton Hotel bombings in Sydney. ("1991 Documents")'