mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
The Tribunal then rejected the appellant's claim because it concluded that he is reasonably capable of relocating to other parts of India if he faces persecution from Muslim fundamentalists in his city of Ahmedabad. After referring to the relocation principle discussed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Tribunal observed that it did not see any impediment to the appellant's relocation to other parts of India. It explained why. It did not think that the appellant had given the Tribunal any persuasive reason why he should feel uncomfortable in setting up his business in other parts of India. It noted that there was no rational basis for the appellant's claimed belief that he and his wife would not be entitled to the same protection as other business people in other major cities in India. Even if he could not afford to set up business in another city, it noted that the appellant is currently employed in Australia as a farm hand, and is also skilled as a medicine salesman and a diamond polisher. It therefore concluded that he is easily capable of taking up other types of work without the necessity of establishing his own business. It rejected his claim that he had unsuccessfully attempted to relocate in the past because he had been unable to tell the Tribunal where he had tried to relocate. It concluded that he is reasonably capable of relocating in India, and so did not have a well-founded fear of persecution for a Convention reason if he were to return to India, even if he may have been the subject of further attacks in his city of Ahmedabad. 10 The appellants sought to have the Tribunal decision quashed by a Federal Magistrate. That application was refused by a decision of a Federal Magistrate of 3 May 2007. The Federal Magistrate found no jurisdictional error on the part of the Tribunal in the way it had considered the appellant's claims, including the assertion (which was the only specific assertion in the grounds of the application before the Federal Magistrate) that the Tribunal had failed to comply with s 424A of the Act by having failed to give to the appellant a notice under that section addressing the matters to which the Tribunal may have had regard in deciding whether it was reasonable for him to relocate to some other part of India. The Federal Magistrate said that the matters to which the Tribunal had regard in reaching that conclusion was information given by the appellant to the Tribunal during the course of the hearing. 11 This is an appeal from the decision of the Federal Magistrate.
Case: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: cited
The first step in considering the appellant's contention that his case was that he had a well-founded fear of persecution for a Convention reason throughout India, because he would be a target for Muslim fundamentalists wherever he was located in India, is to decide whether the appellant should be entitled to raise that matter on this appeal. It was not raised as a ground of appeal before the Federal Magistrate, nor in the grounds of appeal before this Court. Leave to amend a notice of appeal to raise a new ground should only be granted where it is expedient in the interests of justice for that leave to be granted: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] [166]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 177; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [22] .
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: cited
The first step in considering the appellant's contention that his case was that he had a well-founded fear of persecution for a Convention reason throughout India, because he would be a target for Muslim fundamentalists wherever he was located in India, is to decide whether the appellant should be entitled to raise that matter on this appeal. It was not raised as a ground of appeal before the Federal Magistrate, nor in the grounds of appeal before this Court. Leave to amend a notice of appeal to raise a new ground should only be granted where it is expedient in the interests of justice for that leave to be granted: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] [166]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 177; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [22] .
Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: considered
There is another reason why, in any event, in my judgment, the appellant's claim is inevitably doomed to failure (even if as widely expressed as he now asserts). That is because, as the Tribunal remarked, there is no reason to consider that the Indian authorities would not provide an appropriate level of protection to the appellant at least outside of the state of Gujarat. In Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1, Gleeson CJ, Hayne and Heydon JJ said at [26]: No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people. Their response was unlawful. The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of the Ukraine to conform to its obligations in that respect. 32 Those observations apply equally to the present matter. There is no evidence upon which the Tribunal could have found, even if the appellant were at risk of Muslim fundamentalists throughout India, that the Republic of India did not provide reasonable measures to protect the lives and safety of its citizens including providing an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system. Consequently, even if the appellant were able to show (contrary to what is clearly the Tribunal's conclusion of fact) that he was at risk of attack by Muslim fundamentalists throughout India, there is no basis upon which he could show that that non-state threat was one in which the Indian state itself was complicit, or in respect of which the Indian state did not provide an appropriate level of protection by police and other authorities.
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: considered
I have also independently considered whether there is some other basis upon which the appellant might have demonstrated jurisdictional error on the part of the Tribunal. Section 425(1) of the Act obliges the Tribunal to have invited the appellant to give evidence and present arguments relating to the issues arising in relation to the decision under review. As the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) pointed out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] , the reference to "the issues arising in relation to the decision under review" is important. The issue of relocation was therefore an important one, but it was, as the Tribunal's record of hearing as exposed in its reasons for decision illustrates, raised fairly and squarely before the appellant. Moreover, even if "the issues" to be the subject of a hearing are more refined, and extend to particular factual matters which may go to the question of reasonableness of relocation, in this instance in my judgment the Tribunal adequately gave the appellant the opportunity to address those factual matters. In particular, it put to him that he had travelled to Australia and that, if he were able to set himself up in Australia, there is no reason why he should not be able to do so in another city in India. 34 For those reasons, in my judgment, the appeal must be dismissed. The appellant is to pay to the first respondent the costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 9 August 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr D Godwin Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 8 August 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1197.html
Case: Australian Competition &amp; Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873
Outcome: referred to
Australian Competition &amp; Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873, Finkelstein J observed at [7]: 'The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.'
Case: Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407
Outcome: referred to
Seven Network Ltd and Anor v News Ltd and Ors (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 Sackville J said at [27]: '... it seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under O 46, r 6 of the Rules will have to take into account the particular circumstances of the case. I agree ... that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the Court's determination of the issues arising in the proceedings ...' The above passage was approved by French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 at [18] . 0
Case: eisa Ltd v Brady and Ors [2000] NSWSC 929
Outcome: distinguished
agree with Rares J in Llewellyn that the approach adopted in the Supreme Court of New South Wales, in which different rules apply, is different from the approach adopted by the rules of this Court: see at [21] and [22] of his Honour's judgment. Pursuant to O 46 r 6(1) of the Federal Court Rules , a non-party will generally be entitled to access the pleadings. Accordingly I do not consider the comments of Santow J in eisa Ltd v Brady and Ors [2000] NSWSC 929 at [20] are applicable to this Court in so far as they apply to pleadings. However, in respect of affidavit material which has not been read in Court, the comments of Santow J in respect of affidavits accord with the principle outlined by Sackville J in Macquarie Radio and Seven Network .
Case: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408
Outcome: referred to
rules may apply when material has not been admitted into evidence. In Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 Sackville J said at [21]: 'Of course, the position may well be different where leave is sought to inspect affidavits that have not been read in open court. For example, as Santow J recognised in eisa Ltd v Brady, there is a risk of serious injustice if untested allegations contained in affidavits or pleadings can be published to the world at large without the usual constraints of defamation law applying.' I agree with Rares J in Llewellyn that the approach adopted in the Supreme Court of New South Wales, in which different rules apply, is different from the approach adopted by the rules of this Court: see at [21] and [22] of his Honour's judgment. Pursuant to O 46 r 6(1) of the Federal Court Rules , a non-party will generally be entitled to access the pleadings. Accordingly I do not consider the comments of Santow J in eisa Ltd v Brady and Ors [2000] NSWSC 929 at [20] are applicable to this Court in so far as they apply to pleadings. However, in respect of affidavit material which has not been read in Court, the comments of Santow J in respect of affidavits accord with the principle outlined by Sackville J in Macquarie Radio and Seven Network .
Case: Seven Network Ltd and Anor v News Ltd and Ors (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1
Outcome: referred to
Seven Network Ltd and Anor v News Ltd and Ors (No 2) [2005] FCA 1394 ; (2005) 148 FCR 1 Sackville J said at [27]: '... it seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the exercise of the discretion under O 46, r 6 of the Rules will have to take into account the particular circumstances of the case. I agree ... that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the Court's determination of the issues arising in the proceedings ...' The above passage was approved by French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 at [18] . 0 I agree with Rares J in Llewellyn that the approach adopted in the Supreme Court of New South Wales, in which different rules apply, is different from the approach adopted by the rules of this Court: see at [21] and [22] of his Honour's judgment. Pursuant to O 46 r 6(1) of the Federal Court Rules , a non-party will generally be entitled to access the pleadings. Accordingly I do not consider the comments of Santow J in eisa Ltd v Brady and Ors [2000] NSWSC 929 at [20] are applicable to this Court in so far as they apply to pleadings. However, in respect of affidavit material which has not been read in Court, the comments of Santow J in respect of affidavits accord with the principle outlined by Sackville J in Macquarie Radio and Seven Network .
Case: Aktiebolaget Hassle v Alphapharma Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411
Outcome: cited
criticised Dr Rowe's conclusions as no more than a routine literature search, falling short of establishing that what was shown by the documents to which he referred had entered the common general knowledge of those in Australia experienced in the practical working of formulating drugs for therapeutic use. See Aktiebolaget Hassle v Alphapharma Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 at [45] and [57]. It is true that Dr Rowe does not, in his several reports, use the words of s 7(2) of the Act "common general knowledge as it existed" in Australia. Nevertheless, on a fair reading of his reports, he does in my view do more than list the matters that he thought could be derived from the publications to which he referred. Dr Rowe first identified the relevant skilled person. He said that during his time at Abbott Laboratories in Sydney in the late 1980s working on new pharmaceutical formulations, he headed a team of six people comprising three analytical chemists and three formulation chemists, as well as several technicians. At the time he had a PhD, and the chemists in the team all had chemistry or pharmacy degrees and between two and fifteen years experience. He said that was the team he considered to be a typical team involved in pharmaceutical formulation, including sustained release formulation, in Australia at the priority date. He went on to say that where in his affidavit he referred to a skilled person, he was referring to what he would have done and what he believed, on the basis of his experiences, other persons with similar experience would be likely to have done at the priority date. Thus, for example, when he later referred (at par 40 of his affidavit) to standard textbooks which he owned "and which would have been routinely referred to by the Skilled Person at the Priority Date", he is to be taken as saying that a team such as the Abbott Laboratories group would have routinely referred to those texts. Throughout his main report (his affidavit) he uses variants of this formulation. Accordingly, when in examining the integers of the various claims, Dr Rowe says that the claims do not "provide anything that is new or surprising or an advance over what was well known and understood by the Skilled Person as at the Priority Date", and that they provide results of routine trial and error testing (at par 78), his opinion is to be understood in the manner I have described. Aspects of Dr Rowe's evidence were challenged (briefly, "given time constraints") by Professor Charman. See pars 161 to 163 of his affidavit of 19 May 2009. It is not possible on an application such as this to come to a conclusion as to which expert's opinion is preferable. That is a matter for close examination at trial. Even taking into account Professor Charman's criticisms, I remain of the view that Dr Rowe's evidence, understood as I have explained it, raises a prima facie case of invalidity for want of an inventive step. Manner of new manufacture
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: applied
general principles to be applied are: (a) whether there is a serious question to be tried, or Wyeth has made out a prima facie case in the sense that, if the evidence remains the same, there is a probability that at trial it will be entitled to relief; (b) whether Wyeth will suffer irreparable harm, for which damages will not be an adequate remedy, unless an injunction is granted; and (c) whether the balance of convenience favours the granting of an injunction. See Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 ( O'Neill ) at [19] and [70].
Case: B Braun Melsungen AG v Terumo Corporation (2004) 61 IPR 71
Outcome: applied
if one looks solely to Wyeth's own potential loss, as Sigma contends one should, its undertaking does not adequately protect Wyeth. The probable scenario, if no injunction is granted, is that other generic companies will enter the market. In 2007 and 2008 there were five applications for ARTG registration of products containing venlafaxine. In March 2009 Alphapharm Pty Ltd obtained registration for a venlafaxine product called Enlafax-XR. I accept Wyeth's submission that if Sigma is not restrained, other generic suppliers are unlikely to be restrained, and will enter the market. Once a post-Sigma entity does so, quantification of Wyeth's loss will become impossible. See B Braun Melsungen AG v Terumo Corporation (2004) 61 IPR 71 ( Braun ) at [29]. Sigma's royalty solution depends on a loss of sales of Efexor-XR translating directly into sales of Evelexa-XR. Further, detriment suffered by Wyeth Australia because of Sigma's discounting will not be covered by the undertaking, which is limited to lost sales. It does not cover retained, though discounted, sales. Wyeth's feared loss or damage is summarised at [51] to [58]. Sigma's feared loss is of a different order. It has just entered the market. It has reached that position with its eyes open to the risk. It has incurred setting up and preparation costs well aware of the risk they may be wasted. The evidence is that Sigma has a portfolio of more than 170 products with others planned for launch during 2009 and 2010. Ms Braithwaite's evidence was that Sigma's projected turnover in sales of Evelexa-XR would amount to approximately 0.4% of its total company turnover. In some respects Mr de Alwis' evidence of loss seems exaggerated, such as his claims that Evelexa-XR was to be the jewel in Sigma's crown, that an interlocutory restraint may lead to a decrease in Sigma's share price, and that pharmacists might assume that an injunction reflected adversely on the quality of the product. On this last point, Sigma's own marketing to pharmacists refers to the existence of this patent proceeding and to its undertaking not to list on the PBS until the case is resolved. See also Braun 61 IPR 71 at [30]. As indicated at [56], it is likely that other generic companies will seek to establish their products in the market in competition with Efexor-XR. Ms Braithwaite says that this will lead to intense competition between generic companies. I refer to what I have said at [56] about: For the foregoing reasons, I am of the view that the balance of convenience favours the grant of interlocutory relief.