mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: Luu v Renevier (1989) 91 ALR 39
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24
Outcome: referred to
At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.
Case: American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 
Outcome: referred to
Then in 1975 the House of Lords in American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 considered the principles in relation to the grant of an interlocutory injunction restraining infringement of a patent. The first inquiry was whether there was a serious question to be tried described in terms that seemed to set the bar fairly low. Again, the refusal of a lower court to grant an injunction was reversed.
Case: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 
Outcome: followed
Counsel for GenRx also submits that the authority of Beecham Group [1968] HCA 1 ; 118 CLR 618 has been fully restored by the decision of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, particularly per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] [72]. However, this reaffirmation of Beecham Group [1968] HCA 1 ; 118 CLR 618 lies in the explanation of what is involved in establishing a prima facie case rather than any consideration of the application of the principles to patent infringement. It would be surprising if Gummow J had joined in an exercise which would effectively overrule Martin Engineering 81 ALR 543 without any acknowledgement of that. I propose to direct myself in accordance with Beecham Group [1968] HCA 1 ; 118 CLR 618 as it is explained by both Martin Engineering 81 ALR 543 and O'Neill 227 CLR 57.
Case: F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 50 IPR 305 
Outcome: referred to
Counsel for GenRx submits that that analysis is weakened, if not eliminated, by the type of examination prior to grant discussed in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 50 IPR 305 especially at [48] [57]. In my opinion, that decision is controversial. Even if correct, however, it does not detract from the proposition that the Commissioner is charged with the responsibility of examining the validity of a patent before grant, including any relevant question of anticipation or lack of novelty.
Case: Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543
Outcome: applied
There was much discussion occasioned by the apparent difference in approach between those two decisions. The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group [1968] HCA 1 ; 118 CLR 618 for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group [1968] HCA 1 ; 118 CLR 618. 6 Counsel for GenRx also submits that the authority of Beecham Group [1968] HCA 1 ; 118 CLR 618 has been fully restored by the decision of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, particularly per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] [72]. However, this reaffirmation of Beecham Group [1968] HCA 1 ; 118 CLR 618 lies in the explanation of what is involved in establishing a prima facie case rather than any consideration of the application of the principles to patent infringement. It would be surprising if Gummow J had joined in an exercise which would effectively overrule Martin Engineering 81 ALR 543 without any acknowledgement of that. I propose to direct myself in accordance with Beecham Group [1968] HCA 1 ; 118 CLR 618 as it is explained by both Martin Engineering 81 ALR 543 and O'Neill 227 CLR 57.
Case: Merck &amp; Co Inc v Genrx Pty Ltd (2006) 70 IPR 286
Outcome: cited
I am not satisfied the damages would be an adequate remedy if Sanofi succeeds in the suit, notwithstanding the offer on the part of GenRx to adequately secure a very substantial amount to cover any reasonable likely assessment of damages and offering other undertakings to ameliorate the effect of commencing to trade. It is put on behalf of Sanofi that the assessment of damages would be difficult, if not impossible, for reasons spelled out in detail with some force. No doubt the assessment of damages would be a formidable exercise but I am not persuaded that it would be as complex as suggested. It should not be all that difficult to assess the effect on the incumbent of a new entrant who would have to keep clear records of what took place. I do not see that task as being any more complex in principle than working out the damages which Sanofi would have to pay GenRx under the undertaking for damages for keeping it out of the market if revocation succeeds. However, I am much influenced by the effects of disturbing the status quo, particularly as it relates to the operation of the PBS. A new entrant in this field would have an effect which may be both unpredictable and irreversible. There is also likely to be interference with the trade patterns of Sanofi with its customers, both wholesale and retail, that may not be detectable or measurable in money terms. Sanofi has built up a considerable trade since 2003, and the establishment to go with it, as GenRx looked on. Temporary disturbance of that status quo is not justified. My view is consistent with that of Moore J in Merck &amp; Co Inc v Genrx Pty Ltd (2006) 70 IPR 286. 16 The appeal by GenRx to the public interest in the encouragement of generic competition in pharmaceuticals states one statutory objective. Another is the encouragement of innovation by the enforceable monopoly granted to the holder of a patent. I beware the organisation engaged on a purely commercial enterprise wearing the cloak of public interest. 17 In my opinion, an injunction should be granted provided that the undertaking for damages is adequately secured, bearing in mind that Sanofi is an overseas corporation and bearing in mind the very substantial stakes to which each side has referred and which are backed up by the evidence. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 25 September 2007 Counsel for the Respondent/Cross-Claimant: Mr AJL Bannon SC, Ms CL Cochrane Solicitor for the Respondent/Cross-Claimant: Allens Arthur Robinson Counsel for the Applicant/Cross-Respondent: Mr DK Catterns QC, Ms SJ Goddard Solicitor for the Applicant/Cross-Respondent: Blake Dawson Waldron Date of Hearing: 18 September 2007 Date of Judgment: 21 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1485.html
Case: Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 194 FLR 322
Outcome: referred to
In the present case, the defect or irregularity alleged is that the 9 September notice was not signed by the applicant and did not use the word "satisfied". Such defects or irregularities would be "formal" in the sense that they concern the form, or expression, of the applicant's state of mind about the respondent's default. As such they are to be distinguished from the question of default itself, which would be a matter of substance, concerning as it did substantive rights and liabilities. As to the comparable provision in the Corporations Act 2001 (Cth), see Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 194 FLR 322 at [102]-[106] per Palmer J. 41 Once it is accepted that any defect was formal, or an irregularity, there could be no suggestion that any injustice, substantial or otherwise, was caused. As already noted, it was accepted that the respondent was in default. Nor could there be any doubt that the applicant held a belief that there had been such default. 42 There will be a direction that the PIA executed by the respondent on 2 May 2008 was terminated by a resolution of the respondent's creditors on 30 September 2008.
Case: McRae v Coulton (1986) 7 NSWLR 644 at 663
Outcome: applied
Further, the general law of agency supports the validity of the 9 September notice. Gibbs CJ said in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11: There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else... Where a statute requires a document to be signed by a person, this rule is displaced only if the statute indicates, by the language of the statute or by context and subject matter, that personal signature is required: McRae v Coulton (1986) 7 NSWLR 644 at 663 per Hope JA; see also Dal Pont GE, Law of Agency (2 nd ed, LexisNexis Butterworths, 2008) at 77. Section 222B(1) calls only for a declaration that the trustee is satisfied. Neither the language nor the context suggest that signature by the trustee is essential, let alone the trustee's personal signature.
Case: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1
Outcome: applied
Further, the general law of agency supports the validity of the 9 September notice. Gibbs CJ said in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11: There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else... Where a statute requires a document to be signed by a person, this rule is displaced only if the statute indicates, by the language of the statute or by context and subject matter, that personal signature is required: McRae v Coulton (1986) 7 NSWLR 644 at 663 per Hope JA; see also Dal Pont GE, Law of Agency (2 nd ed, LexisNexis Butterworths, 2008) at 77. Section 222B(1) calls only for a declaration that the trustee is satisfied. Neither the language nor the context suggest that signature by the trustee is essential, let alone the trustee's personal signature. 27 In O'Reilly it was acknowledged that whether a statute requires a power to be exercised personally is "simply one of construction" (at 10), which "depends on the nature of the power and all the circumstances of the case" (at 11). In that case, it was held unnecessary for a Deputy Commissioner of Taxation to personally sign a statutory income tax notice; a facsimile of the Deputy Commissioner's signature, applied by a chief investigating officer, was sufficient. Gibbs CJ adverted to the "chaos" which would result in the administration of taxation if this were not possible (at 12). Practical considerations are also applicable in the present case. It would cause unnecessary inconvenience if a trustee of a PIA were not able to have a partner in the same firm sign a document on his or her behalf. 28 Moreover, the fact that s 63B(1) requires "signed writing" but s 222B(1)(b) says nothing as to signature points against reading into the latter provision a requirement for the "written declaration" to be signed by the trustee. 29 It was put that the 9 September notice did not contain an express statement to the effect that the applicant was satisfied that the respondent was in default.