mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Freeman v TJ and FL Pohlmer Pty Ltd [1994] FCA 1568 ; (1994) 30 IPR 377
Outcome: cited
In connection with issues of novelty, inventiveness and construction of patents, courts frequently rely upon the evidence of skilled addressees. Such a person would presumably be a person of ordinary skill in the relevant art, possessed of the common general knowledge in that art at the relevant time. See, for example, Freeman v TJ and FL Pohlmer Pty Ltd [1994] FCA 1568 ; (1994) 30 IPR 377 at 381 . In connection with novelty and inventiveness, the focus upon such a "skilled addressee" is designed to identify objectively the relevant prior art base and the obviousness of any development going beyond that base. I am not presently concerned with such issues. Where words have a special meaning in the relevant art, it may be necessary that expert evidence concerning such meaning be given by a person skilled in the art. However there is no suggestion of that in the present case. RTI does not dispute the construction of the patent advanced by Mr Davis. Where the words are common technical or scientific words, not limited to use in the particular art, a wider class of persons may be competent to give such evidence. Further, the question of construction is ultimately for the Court. 16 Section 79 of the Evidence Act 1995 (Cth) provides: If a person has specialized knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 17 In his evidence Mr Davis seeks to compare with the RTI patent, particular samples of the product which OMI proposes to market. Mr Davis also seeks to compare those samples with the OMI patent. Counsel for RTI correctly points out that the diagrams attached to Mr Davis's reports do not precisely depict the OMI samples which are in evidence. However the differences do not seem to be significant. I will discuss them in more detail at a later stage. Mr Davis's evidence is obviously based on his reading of the patent in light of his training and experience. That evidence may assist me to compare the samples which are exhibited to Mr Jenkins' affidavit filed on 25 June 2007 with the claims of the OMI patent and the RTI patent. However it is for me to decide all questions of fact. Mr Davis's evidence can do little more than offer an explanation as to the way in which each "feature" in the respective patents may or may not be present in the OMI samples.
Case: Bride v KMG Hungerfords [1998] FCA 412
Outcome: cited
the affidavit in support of his application for an extension of time, Mr Conley recites a conversation which he says he overheard between solicitor and Counsel for the Bank during the District Court proceedings. The substance of that conversation relates to the creation by the Bank of ' an indefinite delay through [the issue of] bankruptcy proceedings ' against him. The conversation is denied and evidence of it was not before the primary judge. No explanation was given why it was not adduced. It would constitute new evidence on the appeal and a grant of leave to rely on it would be prejudicial to the Bank. This is a circumstance that argues against the proposed ground being argued on appeal. A sequestration order should not be refused if, apart from that alleged motive, the Bank is entitled to the order sought ( In re King; Ex parte the Commercial Bank of Australia (No 2) [1920] VLR 490 at 510; Bride v KMG Hungerfords [1998] FCA 412 at 9) . His Honour found that to be the case.
Case: In re King; Ex parte the Commercial Bank of Australia (No 2) [1920] VLR 490
Outcome: cited
the affidavit in support of his application for an extension of time, Mr Conley recites a conversation which he says he overheard between solicitor and Counsel for the Bank during the District Court proceedings. The substance of that conversation relates to the creation by the Bank of ' an indefinite delay through [the issue of] bankruptcy proceedings ' against him. The conversation is denied and evidence of it was not before the primary judge. No explanation was given why it was not adduced. It would constitute new evidence on the appeal and a grant of leave to rely on it would be prejudicial to the Bank. This is a circumstance that argues against the proposed ground being argued on appeal. A sequestration order should not be refused if, apart from that alleged motive, the Bank is entitled to the order sought ( In re King; Ex parte the Commercial Bank of Australia (No 2) [1920] VLR 490 at 510; Bride v KMG Hungerfords [1998] FCA 412 at 9) . His Honour found that to be the case.
Case: Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752
Outcome: referred to
Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [41] , Bennett J observed that there is no requirement for the employees of Employment Service Providers to identify the basis of their delegated power before signing a Newstart Activity Agreement with a job seeker. Justice Bennett considered the crucial issue to be whether a valid delegation had been made. At [19], Bennett J found that the respondent in Lim had proven that: In contrast to the circumstances described in Lim , the respondent did not produce evidence before the Tribunal to show that MatchWorks provided services to the respondent pursuant to an arrangement described in cl 3 of the delegation, or that the relevant employees of MatchWorks were employed to perform functions and provide services pursuant to that arrangement. In particular, no document was before the Tribunal to show that MatchWorks was an Employment Service Provider within the meaning of cl 3(b) of the delegation. The mere assertion in submissions that such was the case is not tantamount to evidence before the Tribunal. Accordingly, I am not satisfied that there was any material on which the Tribunal could conclude that a valid delegation from the respondent to MatchWorks was in place at the time of the Participation Failure. The application must be remitted to the Tribunal. Although it is not strictly necessary to do so the Court will deal now with the other issues raised in argument. No negotiation of the Newstart Activity Agreement Mr Piotto also alleges that the Tribunal erred in not finding that there was no negotiation of the Newstart Activity Agreement for the purposes of s 605(3) of the Act.
Case: Despot v Department of Family and Community Services [2004] FCA 140
Outcome: referred to
any event, as French J observed in Despot v Department of Family and Community Services [2004] FCA 140 at [40] in relation to the alleged denial of a right to negotiate a Newstart Activity Agreement, "This is not a ground which raises any question of law upon which a review of the AAT decision could be based". The second ground of Mr Piotto's application fails. The respondent's ability to require Mr Piotto to sign a Newstart Activity Agreement
Case: Re Hewitson and Secretary, Department of Family and Community Services (2002) 71 ALD 231
Outcome: distinguished
Piotto also contends that the Tribunal erred in finding that the respondent was able to require him to sign the Newstart Activity Agreement. To support this proposition, Mr Piotto relies on Re Hewitson and Secretary, Department of Family and Community Services (2002) 71 ALD 231. Hewitson is a decision of the Tribunal and is not binding on this Court. The Tribunal, in Hewitson , found that the relevant question under s 607(1)(b)(ii) of the Act, as it then was, was whether the Newstart recipient has "agree[d] to terms of the agreement proposed by the Secretary". The section of the Act in place at the time of Hewitson dealt with a failure to negotiate an agreement and delaying unreasonably entering into an agreement. The Tribunal found that as Mr Hewitson had evinced an intention to be bound by the terms of the agreement, his signature was not required. At the time of Mr Piotto's Participation Failure, s 607(1)(b)(ii) of the Act considered by the Tribunal in Hewitson was no longer in force. Rather the Act at the time of the Participation Failure, provided that a Newstart allowance recipient commits a participation failure if the person "fails to comply with a requirement to enter into a Newstart Activity Agreement"; see s 624(1)(d) of the Act. Its language differs markedly from that employed in the previous s 607(1). Indeed, a Newstart Activity Agreement must be a written agreement between the Newstart recipient and the respondent; see s 605(4) of the Act. It follows from this requirement that there must be some written indication of Mr Piotto's consent to its terms. There is no material to suggest that Mr Piotto complied with the requirement in s 624(1)(d) of the Act to enter into a Newstart Activity Agreement. The third ground of Mr Piotto's application fails. The Newstart Activity Agreement was "inherently faulty" Mr Piotto also alleges that the Newstart Activity Agreement offered by MatchWorks was unreasonable and "inherently faulty" as it did not comply with s 606 of the Act. In doing so, Mr Piotto points to what he says is the intention of MatchWorks to unilaterally change the terms of the Newstart Activity Agreement, the requirement to complete ten job searches each fortnight and the requirement that Mr Piotto perform "work for the dole".
Case: Canturi v Sita Coaches Pty Ltd (2002)116 FCR 276
Outcome: applied
Whatever may be the position in other contexts, s 400(5) does not require, as an essential element of contravention, an overbearing of the will of the employee. There can still be a contravention even if, as in the present case, the employee does not sign the AWA and thus has not had his or her will overborne. By contrast, at common law the question of duress will usually only arise where the plaintiff is seeking to avoid the consequence of some act or event allegedly produced by the duress of the defendant, such as the payment of money or the entering into a contract. In Canturi v Sita Coaches Pty Ltd (2002)116 FCR 276 at [43] Ryan J, after reviewing the authorities, stated the position as follows: In my view, the consensus of the authorities to which I have referred is that duress, in the relevant sense, involves the illegitimate application of pressure to induce a party to enter into an AWA, or to discourage a party from taking that course. What is illegitimate is a question of fact to be decided in the circumstances of each case which may include whether there is an existing relationship of employer and employee or some other relationship of utmost good faith between the parties to the proposed AWA. As is made clear by the last sentence in the passage from the judgment of the Full Court in Schanka [v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 at [23] ] quoted at [36] above, it is not only pressure which in fact overbears the will of one party so as to result in an AWA being concluded that can amount to duress. Accordingly, I cannot accept the argument advanced on behalf of the respondents that "neither Napoli nor Canturi submitted to the alleged duress so it cannot be contended that their will was overborne, or that the conduct alleged against the respondents was illegitimate". 86 Later at [295] his Honour said that he was satisfied of "all the above matters" (ie the matters in [292]-[294] quoted at [70] above) "to what Ryan J in Canturi described as 'the requisite degree' when referring to Briginshaw principles".
Case: Employment Advocate v Williamson [2001] FCA 1164 ; (2001) 111 FCR 20
Outcome: cited
Her Honour pointed out that the Evidence Act 1995 (Cth) contained a provision dealing with standard of proof in civil matters, viz s 140 , which is as follows: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. As her Honour had noted, with the concurrence of Kenny J, in Employment Advocate v Williamson [2001] FCA 1164 ; (2001) 111 FCR 20 at [65] , s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.
Case: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: cited
In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7.
Case: Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33
Outcome: cited
No legal right or legitimate expectation of Ms Wills removed or threatened . Removal or threatened removal of something which can be characterised as a legal right or legitimate expectation is not an essential element of the concept of duress under the statute. In any event, with her established pattern of weekend work, an "unwritten agreement" as Mr Taylor termed it, Ms Wills plainly did have a legitimate expectation; cf Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33 at [43]. Of necessity, a legitimate expectation is something less than a legal right. 77 No actual or threatened detriment sufficient to constitute duress . The loss of shifts, particularly on weekends was, on the evidence, a serious detriment to Ms Wills. She was a student who depended on part time employment to survive. 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.
Case: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 165 ALR 67
Outcome: cited
Conduct was not illegitimate or unconscionable . Lawful conduct can constitute duress: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 165 ALR 67 at [367] . Characterising conduct as unconscionable involves a value judgement. His Honour was entitled to consider the relative age and power positions of the parties and the way in which Mr Hibberd exploited that position, for example by denying that Ms Wills had a pattern of weekend work. The picture of Mr Hibberd emerging from the evidence of Ms Wills, whom his Honour found to be "impressive" and "a young woman of some fortitude" (at [186]), was of a man behaving in an overbearing way to a vulnerable employee. 79 Not established that Mr Hibberd intentionally applied duress to Ms Wills in connection with an AWA . The conduct of Mr Hibberd and Ms Berechree, especially in their directions to Mr Taylor regarding the roster, was intentional conduct, plainly meant to apply pressure to Ms Wills in connection with an AWA. It had no other purpose that is apparent. Ms Wills' note, which disclosed at the very least that she was not about to sign the AWA and accept whatever Mr Hibberd was pleased to give her, was followed the next day by his directions. This was hardly a coincidence. 80 Not established Ms Wills regarded as a ringleader . This was a finding well open in the light of Ms Wills' conduct at the meetings of 7 and 27 August and Mr Hibberd's suggesting at the latter meeting that Ms Wills was acting as a bargaining agent. In any event, this is not a factual finding of critical importance. Whether or not Ms Wills was the ringleader, or seen as such by Mr Hibberd, unconscionable pressure was applied to her.
Case: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449
Outcome: cited
Her Honour referred to a number of authorities, including the High Court decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy (1965) 112 CLR 517. In the latter case the High Court at 521 made it plain that the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. (Emphasis added by Branson J in Gama at [131].)
Case: Rejfek v McElroy (1965) 112 CLR 517
Outcome: cited
Her Honour referred to a number of authorities, including the High Court decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy (1965) 112 CLR 517. In the latter case the High Court at 521 made it plain that the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. (Emphasis added by Branson J in Gama at [131].) 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.
Case: Smith v Granada Tavern [2007] FMCA 904
Outcome: affirmed
Ms Emily Wills, a student at the University of Tasmania, is a casual employee at the Granada Tavern in Berriedale, a suburb of Hobart. The Tavern is owned by the first appellant (the Company), a company trading under that name. In an application brought by a Workplace Inspector, Burchardt FM in the Federal Magistrates Court found that the Company, its director the second appellant Mr Michael Hibberd, and the manager of the Tavern, the third appellant, Ms Jocelyn Berechree, had applied duress to Ms Wills in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth): Smith v Granada Tavern [2007] FMCA 904. 2 His Honour imposed penalties of $24,750 on the Company, $4,950 on Mr Hibberd and $1,980 on Ms Berechree.
Case: Gryst v Dromana [2008] FCA 1148
Outcome: cited
In Gryst v Dromana [2008] FCA 1148 I ordered that an application under s 459P of the Corporations Act 2001 (Cth) to wind up Dromana be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1975 (Cth). The issue now before me is that of costs.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: cited
Dromana seeks that Mr Gryst pay its costs of the proceedings on either an indemnity basis or a solicitor and client basis instead of, as is the usual case, on a party and party basis: on which see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156-157. The primary reason for it so doing is the assertion that the proceeding itself was an abuse of process. Reliance is placed upon Mr Gryst's own affidavit evidence that he commenced the winding up application "to try to obtain payment for services which [he] rendered". Alternatively, it is said that a departure from the ordinary practice of the court is warranted because Mr Gryst persisted in what should on proper consideration have been seen to be a hopeless case: see J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers WA Branch (No 2) (1993) 46 IR 301 at 303.
Case: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers WA Branch (No 2) (1993) 46 IR 301
Outcome: cited
Dromana seeks that Mr Gryst pay its costs of the proceedings on either an indemnity basis or a solicitor and client basis instead of, as is the usual case, on a party and party basis: on which see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156-157. The primary reason for it so doing is the assertion that the proceeding itself was an abuse of process. Reliance is placed upon Mr Gryst's own affidavit evidence that he commenced the winding up application "to try to obtain payment for services which [he] rendered". Alternatively, it is said that a departure from the ordinary practice of the court is warranted because Mr Gryst persisted in what should on proper consideration have been seen to be a hopeless case: see J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers WA Branch (No 2) (1993) 46 IR 301 at 303.