mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082
Outcome: referred to
I made orders earlier today including orders for the discharge of injunctions previously made against each of the respondents. In order to avoid repetition and to give relevant context, these reasons ought to be read together with the reasons for making those orders: Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082. 2 Immediately following the pronouncement of those orders the applicant, Clough Engineering Ltd, by an amended motion invited the Court to stay their execution and further, to extend the injunctions previously made, pending the determination of an application for leave to appeal from my judgment in respect of those orders. 3 In an ex tempore judgment I granted the stay of execution and extended the injunctions.
Case: Erinford Properties Ltd v Cheshire County Council [1974] Ch 261
Outcome: followed
Such a limited stay and injunction is open to be made, although the court has ordered the dissolution of the injunctions already made: Erinford Properties Ltd v Cheshire County Council [1974] 1 Ch 261 at 267-268. It is necessary for the applicant to establish that there are reasonably arguable grounds of appeal: Smith v New South Wales Bar Association [1991] HCA 59 ; (1991) 66 ALJR 219 at 220.
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572
Outcome: cited
I take into account that on such an application, points of substance will be raised and not merely procedural matters. In such circumstances the threshold for obtaining leave is somewhat lower than otherwise might be the case: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 at [45] ; Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] .
Case: Smith v New South Wales Bar Association [1991] HCA 59 ; (1991) 66 ALJR 219
Outcome: cited
Such a limited stay and injunction is open to be made, although the court has ordered the dissolution of the injunctions already made: Erinford Properties Ltd v Cheshire County Council [1974] 1 Ch 261 at 267-268. It is necessary for the applicant to establish that there are reasonably arguable grounds of appeal: Smith v New South Wales Bar Association [1991] HCA 59 ; (1991) 66 ALJR 219 at 220.
Case: Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147
Outcome: cited
I take into account that on such an application, points of substance will be raised and not merely procedural matters. In such circumstances the threshold for obtaining leave is somewhat lower than otherwise might be the case: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 at [45] ; Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147 at [39] .
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ; (1999) 217 ALR 495
Outcome: followed
The principles that govern the circumstances in which an order under O 29 r 2 of the Federal Court Rules may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ; (1999) 217 ALR 495 (" Reading ") at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . Ultimately, the question is whether, in the exercise of the Court's discretion, this is an appropriate case for the departure from the ordinary course that all issues of fact and law should be determined at the one time, on the basis that it is just and convenient for the order to be made: see Reading at [9]; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As counsel for the applicants pointed out, the outcome of the reported decisions on O 29 r 2 turns in each instance on the nature of the case and the particular circumstances relevant to it. 18 It is customary in intellectual property cases, however, to hear and determine issues of liability separately and before issues of pecuniary relief. This is largely because it is generally thought just and convenient to so order on account of the fact that an applicant in such a case is not compelled to make an election as between damages and an account of profits at least before the evidence on liability has been received: see Reading at [9] per Branson J; Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 ; Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529 at [40] per Ambrose J; and Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] - [9] per Stone J. Under s 56(3) of the PBRA, in an action for infringement, Canada is entitled to make an election for damages or an account of profits. That is, the nature of Canada's case attracts the same considerations as other intellectual property cases requiring an election between the remedies in the event that liability is established.
Case: Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651
Outcome: followed
The principles that govern the circumstances in which an order under O 29 r 2 of the Federal Court Rules may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ; (1999) 217 ALR 495 (" Reading ") at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . Ultimately, the question is whether, in the exercise of the Court's discretion, this is an appropriate case for the departure from the ordinary course that all issues of fact and law should be determined at the one time, on the basis that it is just and convenient for the order to be made: see Reading at [9]; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As counsel for the applicants pointed out, the outcome of the reported decisions on O 29 r 2 turns in each instance on the nature of the case and the particular circumstances relevant to it.
Case: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Outcome: referred to
The principles that govern the circumstances in which an order under O 29 r 2 of the Federal Court Rules may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ; (1999) 217 ALR 495 (" Reading ") at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . Ultimately, the question is whether, in the exercise of the Court's discretion, this is an appropriate case for the departure from the ordinary course that all issues of fact and law should be determined at the one time, on the basis that it is just and convenient for the order to be made: see Reading at [9]; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As counsel for the applicants pointed out, the outcome of the reported decisions on O 29 r 2 turns in each instance on the nature of the case and the particular circumstances relevant to it.
Case: Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230
Outcome: followed
It is customary in intellectual property cases, however, to hear and determine issues of liability separately and before issues of pecuniary relief. This is largely because it is generally thought just and convenient to so order on account of the fact that an applicant in such a case is not compelled to make an election as between damages and an account of profits at least before the evidence on liability has been received: see Reading at [9] per Branson J; Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 ; Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529 at [40] per Ambrose J; and Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] - [9] per Stone J. Under s 56(3) of the PBRA, in an action for infringement, Canada is entitled to make an election for damages or an account of profits. That is, the nature of Canada's case attracts the same considerations as other intellectual property cases requiring an election between the remedies in the event that liability is established.
Case: Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529
Outcome: followed
It is customary in intellectual property cases, however, to hear and determine issues of liability separately and before issues of pecuniary relief. This is largely because it is generally thought just and convenient to so order on account of the fact that an applicant in such a case is not compelled to make an election as between damages and an account of profits at least before the evidence on liability has been received: see Reading at [9] per Branson J; Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 ; Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529 at [40] per Ambrose J; and Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] - [9] per Stone J. Under s 56(3) of the PBRA, in an action for infringement, Canada is entitled to make an election for damages or an account of profits. That is, the nature of Canada's case attracts the same considerations as other intellectual property cases requiring an election between the remedies in the event that liability is established.
Case: Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013
Outcome: followed
It is customary in intellectual property cases, however, to hear and determine issues of liability separately and before issues of pecuniary relief. This is largely because it is generally thought just and convenient to so order on account of the fact that an applicant in such a case is not compelled to make an election as between damages and an account of profits at least before the evidence on liability has been received: see Reading at [9] per Branson J; Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 ; Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529 at [40] per Ambrose J; and Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] - [9] per Stone J. Under s 56(3) of the PBRA, in an action for infringement, Canada is entitled to make an election for damages or an account of profits. That is, the nature of Canada's case attracts the same considerations as other intellectual property cases requiring an election between the remedies in the event that liability is established.
Case: Polaris Communications Pty Ltd v Dynamic Hearing Pty Ltd [2007] FCA 627
Outcome: followed
I accept that, if the applicants succeed on their principal liability issues, they will have a good basis for injunctive relief. In turn, to quote Sundberg J, this would provide an "end point" to the respondents' infringing conduct and a proper foundation for a consideration of the quantum of pecuniary relief to which the applicants would be entitled: see Polaris Communications Pty Ltd v Dynamic Hearing Pty Ltd [2007] FCA 627 at [5] . 22 Any trial on liability would, of course, include a hearing and determination of the penalty and/or relief against forfeiture issues that Mr Hannaford pleads by way of Defence. On account of these claims, however, Mr Hannaford argues that the applicants exaggerate the savings in time and expense if a split trial were ordered. He maintains that the penalty and/or relief against forfeiture issues would necessitate discovery of certain of his and Fleming's Nurseries' financial records since the value (to him and to Fleming's Nurseries) of the asset (the cherry trees) subject to the so-called penalty clause is in issue. There would, so his counsel says, be a corresponding need to prepare and present financial evidence directed to these matters. Accordingly, his counsel submits that the cost to Mr Hannaford of a trial on all issues would not be appreciably greater than the cost of a trial on liability alone. 23 The applicants respond that, so far as they are concerned, the evidence as to penalties and/or relief against forfeiture is not co-terminous with the evidence as to monetary relief. They affirm that, so far as they are concerned, there would remain significant cost and time advantages with a split trial.
Case: Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306
Outcome: referred to
Apparently there will be a need for some plant DNA testing in relation to issues 1 and 2. Issues 2 and 5 also involve some questions of construction. The applicants foreshadow that they will argue that, when properly construed, the so-called penalty clause does not provide for a penalty at all but is merely intended to provide further protection against unauthorised use. Counsel for Mr Hannaford, on the other hand, states that, on the matter of penalty, Mr Hannaford wishes to adduce evidence of the value of the asset to him, the value to Fleming's Nurseries, the sum paid in respect of it, and related matters: see in this connection Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306 at 309-309 (citing Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1 ; [1915] AC 79 at 86-87).
Case: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1 ; [1915] AC 79
Outcome: cited
Apparently there will be a need for some plant DNA testing in relation to issues 1 and 2. Issues 2 and 5 also involve some questions of construction. The applicants foreshadow that they will argue that, when properly construed, the so-called penalty clause does not provide for a penalty at all but is merely intended to provide further protection against unauthorised use. Counsel for Mr Hannaford, on the other hand, states that, on the matter of penalty, Mr Hannaford wishes to adduce evidence of the value of the asset to him, the value to Fleming's Nurseries, the sum paid in respect of it, and related matters: see in this connection Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306 at 309-309 (citing Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1 ; [1915] AC 79 at 86-87).
Case: Australian Broadcasting Commission v Parish (1980) 29 ALR 228 
Outcome: applied
Full Court applied these principles in Australian Broadcasting Commission v Parish (1980) 29 ALR 228. Bowen CJ said at 29 ALR at 233 that: 'Where proceedings are brought to restrain publication of confidential material, similar consideration apply. Disclosure would prejudice the court's proper exercise of the function it was appointed to discharge, to do justice between the parties. The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely. The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop.'
Case: Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50
Outcome: cited
Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51 Barton ACJ giving the judgment of the High Court said that: '... the judgment of the House of Lords in Scott v Scott ([1913] AC 417), the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.'
Case: Herald and Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 
Outcome: followed
other Full Courts have continued to apply these principles; see Herald and Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 443 where Merkel J, with whom Finn and Stone JJ agreed, applied what Gibbs J had said in Russell v Russell [1976] HCA 23 ; (1976) 134 CLR 495 at 520, namely: 'It is the ordinary rule of the Supreme Court as of other courts of the nation, that their proceedings should be conducted "publicly and in open view" ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials for "publicity is the authentic hallmark of judicial as distinct from administrative procedure" ( McPherson v McPherson [1936] AC 1777 at 200). Merkel J went on to recognise at 130 FCR 444-445 [36]: 'A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 at 180. If that situation arises it can be waived in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice.'
Case: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 
Outcome: cited
am of opinion that the construction which the courts have given to these two provisions in effect make them reflective of the implied power of every court to do justice in proceedings before it and of the concomitant inherent power of superior courts of record to supervise the administration of justice generally (see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 363-365. John Fairfax &amp; Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476E-G per McHugh JA).
Case: John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 
Outcome: cited
my opinion it is important to start with the recognition that our system of justice depends upon the public having confidence in what takes place in open court. In John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, McHugh JA said at 476: 'The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of the court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication.' I am of opinion that the construction which the courts have given to these two provisions in effect make them reflective of the implied power of every court to do justice in proceedings before it and of the concomitant inherent power of superior courts of record to supervise the administration of justice generally (see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 363-365. John Fairfax &amp; Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476E-G per McHugh JA).
Case: R v Hamilton (1930) SR NSW 277
Outcome: followed
R v Hamilton (1930) SR NSW 277 at 278, Street CJ, with whom Ferguson and Halse Rogers JJ concurred, applied these remarks and another passage from Lord Haldane's speech in which he said that: 'A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.'
Case: The Queen v Tait (1979) 46 FLR 386 
Outcome: cited
The Queen v Tait (1979) 46 FLR 386 a Full Court of this court applied the principle in a criminal case. Brennan, Deane and Gallop JJ said at 46 FLR at 404: 'The exception - limited to cases where the presence of the public would make the securing of justice "doubtful of attainment" - does not extend to cases where excluding the public would merely save a party or a witness from suffering a collateral disadvantage as the result of the publicity of the proceedings in which he is engaged or in which he is to give evidence.'
Case: Gittins v Repatriation Commission [2007] FMCA 167
Outcome: affirmed
The appellant, Mrs Gittins, appeals from a judgment of the Federal Magistrates Court which dismissed her appeal from a decision of the Administrative Appeals Tribunal (Tribunal) (see Gittins v Repatriation Commission [2007] FMCA 167). The Tribunal affirmed a decision of the Veterans' Review Board (Board) that Mrs Gittins was not entitled to a war widow's pension under the Veterans' Entitlements Act 1986 (Cth) (Act). 2 On 16 October 2002, Mrs Gittins applied for a war widow's pension. Her husband, Mr Philip Gittins, had died on 25 July 1997. Mr Gittins was a veteran who served in the Australian Army from July 1949 until December 1971. He had served on operations in Japan from July 1953 until July 1955. 3 Mr Gittins died as a consequence of a low grade non-Hodgkin's lymphoma. In 1976, Mr Gittins worked as a teacher at Brighton Grammar School. At that time, at the urging of his headmaster, Mr Gittins saw a surgeon about a mass on the left side of his neck. The mass has been present since about 1960 and, over time, had grown more visible without causing any symptoms.
Case: Repatriation Commission v Hill (2002) 69 ALD 581
Outcome: applied
In Repatriation Commission v Hill (2002) 69 ALD 581 ( Hill ) at [55], a Full Court of this Court approved the judgment of Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72, determining that the hypothesis which is to be held by an SoP is that which connects the disease with the circumstances of the veteran's service. There must be a hypothesis, in the words of Riley FM in the judgment below at [21], "which starts with the disease ... and ends with the service". 9 Further, in Hill at [55], the Court said "a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP". 10 The Tribunal observed that Mrs Gittins relied on SoP No 37 of 2003, concerning non-Hodgkin's lymphoma. In particular, she relied on factor 5(j) of the SoP which refers to "... the inability to obtain clinical management for non-Hodgkin's lymphoma." 11 Clause 5(j) of the SoP provides: ...[t]he factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma with the circumstances of a person's relevant service are: ... (j) inability to obtain appropriate clinical management for non-Hodgkin's lymphoma.
Case: Repatriation Commission v McKenna (1998) 52 ALD 72
Outcome: referred to
In Repatriation Commission v Hill (2002) 69 ALD 581 ( Hill ) at [55], a Full Court of this Court approved the judgment of Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72, determining that the hypothesis which is to be held by an SoP is that which connects the disease with the circumstances of the veteran's service. There must be a hypothesis, in the words of Riley FM in the judgment below at [21], "which starts with the disease ... and ends with the service".