mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532 
Outcome: cited
It need hardly be said that the disclosures of information about Scott Rush made by or on behalf of Lee Rush to AFP officers could not give rise to a duty of confidence to Lee Rush such as would prevent its use by the AFP in its investigations into drug trafficking into Australia. The disclosures related to apprehended serious criminal misconduct: cf Corrs Pavey Whiting &amp; Byrne v Collector of Customs (1987) 14 FCR 434 esp at 456. And a court would not enforce any contractual or equitable obligation relating to such information, the effect of which would have been to obstruct the administration of the criminal law: A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532.
Case: Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149 
Outcome: cited
It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149. I would note, though, that the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100]. 122 The applicants' contentions in relation to this tort require that close attention be given to the requirements of O 15A r 6 in particular. I emphasise this for this reason.
Case: L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575
Outcome: cited
The essence of the misfeasance tort in either of its forms is the "dishonest abuse of power": L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575 at 1588. I am in complete agreement with the submissions of the respondent that there is no basis at all in the material before me to suggest any reasonable cause to believe that Mr Hunniford or other AFP officers acted with the reckless indifference asserted in the applicants' supplementary written submissions. What is being advanced is at best "a mere possibility". The evidence does not "incline the mind" towards assenting to the proposition asserted: cf St George Bank Pty Ltd v Rabo at [26]. 124 I have already indicated that the actions of the AFP officers concerned with the decisions and actions which led to the applicants' arrest were not of themselves ultra vires. There is no reasonable cause to believe that the decisions or actions were invalid because they were improperly motivated or that the officers were recklessly indifferent to the possible lack of power or validity in making those decisions or actions. Rather, on the evidence, they were referable to the Police Cooperation MoU with Indonesia. And while it was a foreseeable and likely consequence of the 8 and 12 April letters to the INP, that the applicants would be arrested in Indonesia and in that sense be exposed to harm in the sense of being put at risk of the death penalty, there is again no material at all which could objectively incline me to the proposition that the likelihood of that harm was other than a possible consequence of what was in the circumstances a valid exercise of official power.
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
The applicant applies for leave to appeal from Driver FM's decision. That application was filed out of time. The Minister does not take issue with that fact and I will consider the merits of the application and whether leave to appeal should be granted under the principles in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. 9 The application for leave to appeal annexes an affidavit and a draft notice of appeal. Looking at the grounds of appeal in substance, they contain assertions without particulars. There is no explanation of what the asserted error on the part of the Federal Magistrate is said to be. One ground of appeal refers to jurisdictional error in the decision of the delegate. I take that to mean jurisdictional error on the part of the Tribunal but, again, there is no particularisation of any such asserted jurisdictional error.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: cited
The grounds of appeal do not disclose an arguable case of error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal. The applicant, who appears in person assisted by an interpreter, has not been able to point to any such error. I see no error on the part of the Federal Magistrate, nor jurisdictional error by the Tribunal. Indeed, there seems to be no dispute that the Tribunal carried out its functions in providing the required notification under the Migration Act 1958 (Cth). In the absence of any suggestion of fraud, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 does not assist the applicant. 11 It follows that the application for leave to appeal should be refused. 12 The applicant is to pay the first respondent's costs in the sum of $1000. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2008 The applicant was self represented. Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 25 August 2008 Date of Judgment: 25 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1383.html
Case: SZMBN v Minister for Immigration [2008] FMCA 503
Outcome: considered
The applicant is a citizen of India. He arrived in Australia on 30 March 2007 and applied for a protection visa on 14 May 2007. The applicant's claim for a protection visa was based on a fear of persecution on the basis of his homosexuality. The applicant's application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship. On an application for review, the Refugee Review Tribunal affirmed the delegate's decision. An application for review of the Tribunal's decision was dismissed by Driver FM ( SZMBN v Minister for Immigration [2008] FMCA 503). 2 The applicant's difficulties in relation to his hearing before the Tribunal arose because he did not receive, or did not receive in time, notification from the Tribunal and the invitation to appear at the hearing. There is no dispute that the Tribunal notified the applicant's authorised recipient, his migration agent, of the hearing. However, it would seem that the migration agent did not, in turn, notify the applicant of the opportunity to attend. According to the decision of Driver FM, it may be that the applicant himself received a copy of the hearing invitation in the mail at his home address but, because he was working away from home at the time, it did not come to his attention until after the opportunity to attend the hearing had passed. 3 In any event, the applicant did not attend the hearing before the Tribunal. Given the lack of detail in the applicant's claims and without the opportunity to test the truthfulness of those claims at the hearing, the Tribunal found that it did not have sufficient evidence and was not prepared simply to accept the applicant's claims. It followed that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
Case: Day v Commissioner of Taxation v Day [2007] FCAFC 193
Outcome: cited
A recent discussion of what matters considered in an earlier proceeding can constitute an issue estoppel in later proceedings is to be found in Spassked Pty Ltd v Commissioner of Taxation [2007] FCAFC 205. See also Day v Commissioner of Taxation v Day [2007] FCAFC 193.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: considered
The Chief Justice quoted the observations of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 where Sir Owen Dixon said at 91: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. 11 The present Notices of Motion have to be seen against a background of extensive litigation between the parties to this proceeding, and other entities, in relation to claimed intellectual property rights and entitlements to an invention described as "water meter assemblies". Notwithstanding the complexity of that background, the three motions really turn on whether there is an issue estoppel preventing the applicant from seeking an extension of PP2. If there is no such estoppel, as the applicant asserts, the applicant seeks to rely on an affidavit of Alan Joseph Grieves, which annexes a Deed of Agreement dated 22 October 1996, to argue that, in the light of the terms of that document, the applicant is entitled to the favourable exercise of discretion, having regard, amongst other provisions, to sections 15(1)(a) , (b) and (c), s 28(1)(a), s 33 , s 69 , s 105 and s 138 of the Old Act. Both respondents argue that there is no power to amend the patent request pursuant to s 105 of the Old Act, and even if there were power, there are good reasons, including discretionary considerations, why that power should not be exercised. 12 The respondents contend that the applicant is not entitled to seek an extension of the term of PP2, with the consequences that any amendment to the Statement of Claim in these proceedings would be futile. The applicant's Notice of Motion seeking leave to amend should therefore be dismissed.
Case: General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; [1964] 112 CLR 125
Outcome: considered
An application for summary dismissal pursuant to O 20 r 2 calls for the caution expressed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; [1964] 112 CLR 125, Chief Justice Barwick said at 128-129: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
Case: GS Technology Pty Ltd v Davies Shephard Pty Ltd &amp; Another (2000) 50 IPR 202
Outcome: considered
QUD 46 of 2000 is an appeal pursuant to s 69(7) of the Patents Act 1990 (Cth) (the Old Act) from the decision of a delegate of the Commissioner of Patents (the Commissioner) delivered on 19 May 2000. Delegate Bruhn refused to grant an extension of Petty Patent No 662284 (PP2) on the grounds that the applicant was not entitled to the grant of PP2. The decision is reported: GS Technology Pty Ltd v Davies Shephard Pty Ltd &amp; Another (2000) 50 IPR 202. The decision of Delegate Bruhn largely followed the reasoning of Cooper J in proceedings which related to an earlier provisional patent, Petty Patent No 645740 (PP1). Both PP1 and PP2 are divisionals of Application No 85236/91. 2 These reasons are concerned with three Notices of Motion filed in the appeal from Delegate Bruhn's decision. 62 The submissions seriously mis-state the position before Delegate Bruhn. The solicitor for the applicant before the delegate had sought leave to adduce further evidence into the proceedings, including material which had been exhibit 24 in the Federal Court proceedings concerning Petty Patent No 645740. Delegate Bruhn noted in his judgment ((2000) 50 IPR 202, 206): By a letter dated 22 July 1999 and received at the Patent Office on 26 July 1999, Mr Abaza for the patentee advised that the request for adducing further evidence was withdrawn, and further advised that the Commissioner could "now proceed without the benefit of the further documents ... or any written or oral submission from my client or on its behalf". 63 At 229, Delegate Bruhn specifically refers to the deed of 22 October 1996. He noted that the deed had not been filed by the patentee in the s 28 proceedings for Petty Patent 662284, and that the patentee did not provide the deed in evidence in response to the invitation by the Commissioner to file any evidence in response to the notifier's original s 28 evidence, nor requested the Commissioner to grant leave for the patentee to adduce the deed as further evidence into the proceedings for Petty Patent No 662284. 64 As to the possible relevance of the deed, Delegate Bruhn said: ... although Mr Abaza's submissions suggest that entitlement matters fall into place given the deed, from a brief perusal of the contents of the deed I do not believe that necessarily follows. In particular the deed does not seem to establish a prima facie case for Stack having entitlement to be granted petty patent No 662284. I do not believe that it is appropriate for me to admit the deed in question into the proceedings on my own motion. The patentee has had ample opportunity to formally seek to adduce the document into the proceedings but has not done so. Accordingly I will not have further regard to this deed.
Case: Karen Aluminium Corp and Coal and Kaiser Aluminium and Chemical Corporation v Reynolds Metal Co [1969] HCA 7 ; (1960) 120 CLR 136
Outcome: considered
Section 160 of the Old Act conferred extensive powers on the Court in relation to appeals from a decision of the delegate concerning the extension of Petty Patent 2. The proceedings are in the nature of a rehearing: Karen Aluminium Corp and Coal and Kaiser Aluminium and Chemical Corporation v Reynolds Metal Co [1969] HCA 7 ; (1960) 120 CLR 136 per Kitto J at 142 143. On the hearing of the appeal, the Court may, amongst other things, admit further evidence and give such judgment or make such order as it thinks fit in all the circumstances. 4 On 16 January 2006, GS Technology Pty Ltd (the applicant or GST) filed and served a Notice of Motion seeking that leave be granted pursuant to O 13 r 2 of the Federal Court Rules to file an Amended Statement of Claim. 5 On 5 December 2005, GSA Industries (Aust) Pty Ltd (the second respondent) filed an Amended Notice of Motion seeking that the proceeding be dismissed pursuant to O 20 r 2 of the Federal Court Rules and that Australian Petty Patent No 662284 be revoked. The Notice of Motion also sought costs of the proceeding and of that Notice of Motion.
Case: Smith Kline &amp; French Laboratories Ltd v Evans Medical Ltd [1989] 1 FSR 561
Outcome: considered
Aldous J summarised the factors relevant to the exercise of the Court's discretion under s 105 in Smith Kline &amp; French Laboratories Ltd v Evans Medical Ltd [1989] 1 FSR 561 at 566: First, the onus to establish that amendment should be allowed is upon the patentee and full disclosure must be made of all relevant matters. If there is a failure to disclose all relevant matters, amendment will be refused. Secondly, amendment will be allowed provided the amendments are permitted under the Act and no circumstances arise which would lead the court to refuse the amendment. Thirdly, it is in the public interest that amendment is sought promptly. Thus, in cases where a patentee delays for an unreasonable period before seeking amendment, it will not be allowed unless the patentee shows reasonable grounds for his delay. Such includes cases where a patentee believed that amendment was not necessary and had reasonable grounds for that belief. Fourthly, a patentee who seeks to obtain an unfair advantage from a patent, which he knows or should have known should be amended, will not be allowed to amend. Such a case is where a patentee threatens an infringer with his unamended patent after he knows or should have known of the need to amend. Fifthly, the court is concerned with the conduct of the patentee and not with the merit of the invention. 68 Ms Helen Bowskill, counsel for the first respondent, emphasises the words " provided the amendments are permitted under the Act and no circumstances arise which would lead the court to refuse the amendment." Counsel also points to the third factor referred to by Aldous J, namely, " ... it is in the public interest that amendment is sought promptly. " 69 M Bowskill submitted that s 105 simply does not empower the Court to remedy a lack of entitlement by amendment of the patent request. It was further submitted that even if there were power, the amendment would not be allowed on the basis that is inconsistent with the findings and declarations made by Cooper J in his Honour's First Set of Reasons. Thirdly, even if it were possible, the amendment should not be allowed as a matter of discretion because of the lengthy delay on the part of the applicant in seeking the amendment. 70 In my view, as earlier indicated, the proposed amendment is inconsistent with the findings and declarations of Cooper J, which I have held constitute an issue estoppel. 71 The research of all counsel has not established any decision in which invalidity of a petty patent on the grounds that a patentee was not entitled to be granted the petty patent has been held to be capable of being remedied by amendment of the patent request under s 105 of the Old Act . 72 Mr Vasta for the applicant points to the instance where Mr Stack had made application No 32815, which " emanated from application of 85236 of 91 ", but before the grant of the patent, " the patent request was changed ... to make the grantee Stack and Grieves. " However, this was no contradictor, nor any consideration to the question of power to make that change.
Case: Spassked Pty Ltd v Commissioner of Taxation [2007] FCAFC 205
Outcome: cited
A recent discussion of what matters considered in an earlier proceeding can constitute an issue estoppel in later proceedings is to be found in Spassked Pty Ltd v Commissioner of Taxation [2007] FCAFC 205. See also Day v Commissioner of Taxation v Day [2007] FCAFC 193.
Case: Stack &amp; Anor v Elster Metering Pty Ltd &amp; Ors [2005] HCATrans 445
Outcome: cited
Stack and GST made a further application to the High Court for special leave to appeal from the judgment and order of the Full Court of the Federal Court of 4 May 2001, which application was refused on 23 June 2005. ([2005] HCATrans 445). 45 In arguments by the applicant in relation to issue estoppel, focus was given, in large measure, in the provisions of s 15(1)(a)(b)(c) and (d) of the Old Act , which provided: 15. Who may be granted a patent? (1) Subject to this Act , a patent for an invention may only be granted to a person who: (a) is the inventor; or (b) would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person; or (c) derives title to the invention from the inventor or a person mentioned in paragraph (b); or (d) is the legal representative of a deceased person mentioned in paragraph (a), (b) or (c). 46 The Full Court said at [13]: Clearly, s 15 contemplates the grant of a patent only to a person who falls into one of the four specified categories. His Honour found that as Stack was not the inventor, but rather one of two joint inventors, he was not within par 15(1)(a). He had no claim to an assignment upon issue of the patent and so was not within par 15(1)(b). Clearly, the alleged circumstances in which Grieves permitted Stack to apply did not amount to a transfer of title to the invention for the purposes of par 15(1)(c). The evidence suggests only that Grieves was agreeable to Stack making the application. There was no allegation that Stack was the legal representative of any deceased person who was entitled to a patent (par 15(1)(d)). And further at [14]: Thus the question for determination is whether his Honour was correct in concluding that the Act does not authorize the grant of a patent to one of two or more joint inventors. A perusal of the texts suggests that there has been little recent consideration of this point. ... 47 At [28], the Full Court observed: This brief examination of the historical position in England and the United States demonstrates that Cooper J was correct in concluding that Stack was not entitled to a patent for the joint invention of himself and Grieves. Each may have been entitled to a patent over his part (if it was otherwise patentable), while they both may have been entitled to a joint patent over the whole. Neither was solely entitled to a patent over the total invention. It follows that they could not, by arrangement between them, create in Stack an entitlement to a patent, save to the extent that they created a relationship pursuant to which he satisfied either par 15(1)(b) or par 15(1)(c). As we have observed, whatever agreement there was between them did not have that effect. 48 Mr Vasta QC for the appellant asserted that the applicant was estopped, but only in a narrow sense. " What we are estopped from saying is that George Stack was entitled to patent 662284 in his capacity as the inventor, that is, that is under 15(1)(a). That's what the issue which we are estopped from denying. That's it."
Case: Stack v Brisbane City Council [2004] FCA 354
Outcome: considered
In Stack v Brisbane City Council [2004] FCA 354 (the Third Set of Reasons) Cooper J said at [21] and [22]: For there to arise an issue estoppel binding against Stack and GST it must be shown that: (a) the issue ruled upon was indispensable or fundamental to the ultimate decision: Blair and Perpetual Trustee Co Ltd v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531; (b) the judgment is capable of giving rise to an issue estoppel: Administration of the Territory of Papua New Guinea v Guba [1973] HCA 59 ; (1973) 130 CLR 353 at 451; (c) the issues must be the same in each proceeding: Blair v Curran at 510, 532, 541; and (d) the parties to be bound by an issue estoppel were in controversy on the issue in question: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 at 276, 279; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 356-358; 365. A practical test as to whether an issue was indispensable or fundamental to the ultimate decision is whether an appeal lies from a finding in respect of the issue: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. In the instant case, each of the declarations was appealed to the Full Court of this Court and special leave to appeal in respect of them was refused by the High Court of Australia. Further, the fact that the proceedings were in respect of preliminary issues does not deny that they were capable of creating issues estoppel binding the parties to the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642.
Case: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10
Outcome: considered
In Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10, the Full Court (Emmett, Conti and Selway JJ) said at [36]. The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.