mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374
Outcome: discussed
these reasons, in my view, Mr Nicholls' first proposition set out at [33] above, expressed as generally as it is, is not fairly arguable. It is inconsistent with s 3E of the TAA. The same applies to his second proposition. The cases which are said expressly to establish those propositions do not do so. Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 concerned the question whether Mr Johns, who had provided information to the ASC under compulsion, was entitled to be heard before that information was provided to a Royal Commission. The provision of the information to the Royal Commission was permitted by s 127(4) of the Australian Securities Commission Act 1989 (Cth) (the ASC Act), but it was held that Mr Johns was entitled to have been heard before the provision of that information on an unrestricted basis (see esp per Crennan J at 430-1). Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374 concerned the use to which material seized under a search warrant executed by the AFP and made available to ASIC could then be used by ASIC in the conduct of civil proceedings: see per Austin J at 421-9 [239]-[274] and, in particular, his Honour's conclusion at 429 [274]. That is a different issue to either of the first two propositions of Mr Nicholls. Finally, he referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564. That case addressed the validity of a decision to issue a notice under s 564 of the ITAA where criminal proceedings against the person to whom the notice had been issued had already been commenced. Foster J (who generally agreed with the plurality judgment of Hill and Lindgren JJ) noted at 568 that it was conceded on behalf of the respondent that information so acquired, provided it was acquired for a proper purpose (which his Honour said was the purpose of obtaining information for the collection and protection of the revenue), could be forwarded to the prosecution to assist in a criminal prosecution. The confined nature of that purpose is recognised by the restriction recognised in s 4E(3) and (4) of the TAA referred to above.
Case: Commissioner of Taxation v De Vonk (1995) 61 FCR 564
Outcome: discussed
these reasons, in my view, Mr Nicholls' first proposition set out at [33] above, expressed as generally as it is, is not fairly arguable. It is inconsistent with s 3E of the TAA. The same applies to his second proposition. The cases which are said expressly to establish those propositions do not do so. Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 concerned the question whether Mr Johns, who had provided information to the ASC under compulsion, was entitled to be heard before that information was provided to a Royal Commission. The provision of the information to the Royal Commission was permitted by s 127(4) of the Australian Securities Commission Act 1989 (Cth) (the ASC Act), but it was held that Mr Johns was entitled to have been heard before the provision of that information on an unrestricted basis (see esp per Crennan J at 430-1). Australian Securities and Investments Commission v Rich [2005] NSWSC 62 ; (2005) 52 ACSR 374 concerned the use to which material seized under a search warrant executed by the AFP and made available to ASIC could then be used by ASIC in the conduct of civil proceedings: see per Austin J at 421-9 [239]-[274] and, in particular, his Honour's conclusion at 429 [274]. That is a different issue to either of the first two propositions of Mr Nicholls. Finally, he referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564. That case addressed the validity of a decision to issue a notice under s 564 of the ITAA where criminal proceedings against the person to whom the notice had been issued had already been commenced. Foster J (who generally agreed with the plurality judgment of Hill and Lindgren JJ) noted at 568 that it was conceded on behalf of the respondent that information so acquired, provided it was acquired for a proper purpose (which his Honour said was the purpose of obtaining information for the collection and protection of the revenue), could be forwarded to the prosecution to assist in a criminal prosecution. The confined nature of that purpose is recognised by the restriction recognised in s 4E(3) and (4) of the TAA referred to above.
Case: Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Flexible Steel Lacing Co v Beltreco (2000) 49 IPR 331
Outcome: cited
The essential principles of construction were not in dispute; see generally Sachtler GmbH &amp; Co KG v Re Miller Pty Ltd (2005) 65 IPR 605 at [43]; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39] and Flexible Steel Lacing Company v Beltreco (2000) 49 IPR 331 at 347-350 [70]-[81].
Case: Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230
Outcome: cited
The essential principles of construction were not in dispute; see generally Sachtler GmbH &amp; Co KG v Re Miller Pty Ltd (2005) 65 IPR 605 at [43]; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39] and Flexible Steel Lacing Company v Beltreco (2000) 49 IPR 331 at 347-350 [70]-[81]. 64 The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Hill v Evans (1862) 31 LJ Ch 457
Outcome: referred to
With a prior paper anticipation as alleged here, and applying the reverse infringement test, with assistance from the words of Lord Westbury LC in Hill v Evans (1862) 31 LJ Ch 457 at 463, the following can be stated: "...The antecedent statement [here the Euro-patent] must be such that a person of ordinary knowledge of the subject would at once perceive, understand and be able practically to apply the discovery [the disclosure in the Euro-patent] without the necessity of making further experiments and gaining further information before the invention can be made useful. If something remains to be ascertained which is necessary for the careful application of the discovery, that affords sufficient room for another valid patent." 66 Mr Ben-Meir propounded a disclosure analysis of the Euro-patent which saw all the integers of the patent in suit disclosed. Dr Clarke agreed with the "technical substance" of Mr Ben-Meir's disclosure analysis, but he expressed the view that the disclosure was not such as to amount to instruction in that he did not think that the Euro-patent provided a person skilled in the art with sufficient information to implement a system contemplated by the patent in suit. 67 Thus the parties were apart on the degree or quality of the exemplification or disclosure in the Euro-patent. Before turning to that question, it is important to appreciate the significance to this aspect of the case of my view of integer (d)(v) for claim 1 and integer (g) for claim 13. My disagreement with the applicants' construction of the aspect of claims 1 and 13 about the means for processing data operating to apply the promotional program rules to user personal data, means that it is necessary for the Euro-patent to reveal in the relevant sense a system and a method whereby that element is disclosed not merely a system of a card "belonging to" or "identified with" one person or a unique number which has points updated after purchasing pursuant to some algorithm, as in the Sushi Train system. My views on the construction of integer (d)(v) of claim 1 and integer (g) of claim 13 make it possible for me to express my views about the question of anticipation fairly shortly.
Case: Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228
Outcome: cited
There was no debate as to the applicable law. The Patents Act 1990 as it existed before the amendments made by the Patents Amendments Act 2001 (Act 160 of 2001) governed the case. It was not in dispute that reverse infringement is the general test for anticipation and want of novelty: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235. See also Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 261.
Case: Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236
Outcome: cited
There was no debate as to the applicable law. The Patents Act 1990 as it existed before the amendments made by the Patents Amendments Act 2001 (Act 160 of 2001) governed the case. It was not in dispute that reverse infringement is the general test for anticipation and want of novelty: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235. See also Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 261.
Case: Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565
Outcome: cited
The reverse infringement test cannot be applied literally: see Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 528 and R D Werner &amp; Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 at 568-569. And see generally Bristol Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 at 546-49 [60] - [68] ; Jupiter Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at 105-106; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230; Pfizer Overseas Pharmaceuticals v Eli Lilly &amp; Co (2005) 68 IPR 1 at 66-69 [311]-[324]; Imperial Chemical Industries Pty Ltd v Commissioner of Patents (2004) 63 IPR 476 at 487-490 [60]-[68]; Merck &amp; Co Inc v Arrow Pharmaceuticals [2006] FCAFC 91 ; (2006) 68 IPR 511 at 537-538 [104] - [112] .
Case: Sachtler GmbH &amp; Co KG v Re Miller Pty Ltd (2005) 65 IPR 605
Outcome: cited
The essential principles of construction were not in dispute; see generally Sachtler GmbH &amp; Co KG v Re Miller Pty Ltd (2005) 65 IPR 605 at [43]; Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at 236 [39] and Flexible Steel Lacing Company v Beltreco (2000) 49 IPR 331 at 347-350 [70]-[81].
Case: Abeyratne v Trkulja (1998) 90 FCR 253
Outcome: cited
There are authorities of this Court to the effect that s 60(3) 'does not expressly provide to the contrary' within s 33(1)(c) of the Act and in those circumstances an application for an extension of time within which to elect under s 60(3) may be made by a trustee in bankruptcy even if the time limit of 28 days has expired: Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109; Abeyratne v Trkulja (1998) 90 FCR 253. For the purposes of this application, I will proceed on the assumption that the time can be extended even if the time for election has expired at the time the application is made.
Case: Faulkner, Re; Ex parte Official Receiver (1981) 52 FLR 109
Outcome: cited
There are authorities of this Court to the effect that s 60(3) 'does not expressly provide to the contrary' within s 33(1)(c) of the Act and in those circumstances an application for an extension of time within which to elect under s 60(3) may be made by a trustee in bankruptcy even if the time limit of 28 days has expired: Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109; Abeyratne v Trkulja (1998) 90 FCR 253. For the purposes of this application, I will proceed on the assumption that the time can be extended even if the time for election has expired at the time the application is made.
Case: Gault, Re , Gault v Law (1981) 57 FLR 165
Outcome: considered
Section 179 requires the court to engage in a process which may involve two stages. First, the court must consider whether there is a basis to inquire into the conduct of a trustee in bankruptcy. Secondly, if an inquiry is undertaken, the court must consider what, if any, order should be made as a result of the inquiry. I note the following salient points with respect to the operation of the section in the case of the first stage. It is not necessary for me to consider the second stage because I do not think that there is a basis to inquire into the conduct of the trustee in bankruptcy. 1. The question of whether to order an inquiry is in the broad discretion of the court, and the court should be reluctant to do so unless there are "substantial grounds for believing that the trustee erred in his administration" ( Re Gault , Gault v Law (1981) 57 FLR 165 (' Re Gault ') at 173 per Ellicott J, cited in Macchia at 120 per French J). This requirement has also been put in terms of 'sufficient grounds' ( Re Gault at 173 per Ellicott J), and 'a proper cause to believe that a trustee may have failed to act in relation to a bankruptcy in the manner required by the Act or the general law' ( Wilson v Commonwealth of Australia [1999] FCA 219 at [44] per Branson J). The onus is on the applicant to establish the grounds or case for an inquiry. 2. As with s 178, the exercise of the court's discretion to order an inquiry is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 120 per French J. 3. As with s 178, s 179 is not a vehicle for a bankrupt or other person to seek damages which go beyond the making good of any loss to the bankrupt's estate caused by improper administration by the trustee in bankruptcy: Re Tyndall at 121 per French J.
Case: Moore v Macks [2006] FMCA 594
Outcome: discussed
As I have said, the Federal Magistrate had before him an application issued by the bankrupt on 16 March 2005 and seeking an order removing the trustee. The Federal Magistrate made a decision on the application insofar as it raised matters not related to the trustee's conduct in relation to the appeals ( Moore v Macks [2006] FMCA 594). On 27 April 2006 he made the following orders: '1. That the application filed on 16 March 2005 for orders pursuant to s 179(1)(a) of the Bankruptcy Act removing the respondent as trustee of the applicant's bankrupt estate and for orders relating to the trustee's conduct, other than his proposed abandonment of appeals instituted by the applicant in SAD175/04 and SAD176/04 in the Federal Court of Australia, be dismissed. 2. That further consideration of the application as it relates to orders sought arising out of the proposed abandonment of the said appeals be adjourned to Wednesday, 17 May 2006 at 9.30 am. 3. That the interim application filed on 10 April 2006 do stand dismissed.' 21 Those orders made by the Magistrate are the subject of an appeal to this Court which has not yet been heard and determined. 22 It seems that because the appeals had been called over before me, the Federal Magistrate considered that it may be appropriate for me to deal with what was then left of the application and on 13 June 2006 he made the following order: '1. Further hearing of these proceedings be transferred to the Federal Court of Australia before His Honour Justice Besanko on 22 June 2006 at 2.15 pm.' 23 The power to transfer a 'proceeding' to this Court is contained in s 39 of the Federal Magistrates Act 1999 (Cth). 24 The application before me relates to the trustee's decision that he will not seek to prosecute the appeals. More accurately, in view of the events which have occurred, the decision is the trustee's decision that he will not seek an extension of time to elect for the purpose of prosecuting the appeals. I have considered the application under both s 179 and s 178 of the Act and I have concluded that there are no grounds under either section to impugn the trustee's decision.
Case: Moore v Wilson [2006] FCA 79
Outcome: referred to
The bankrupt challenged the sequestration order which had been made by a Registrar of the Federal Magistrates Court. On 1 July 2005 a Federal Magistrate dismissed the bankrupt's application for review ( Moore v Wilson [2005] FMCA 870). The bankrupt appealed to this Court against the Federal Magistrate's order. On 10 February 2006 a Judge of this Court, exercising the appellate jurisdiction of the Court, dismissed the bankrupt's appeal ( Moore v Wilson [2006] FCA 79). The bankrupt then applied to the High Court for special leave to appeal from the Judge's decision. It seems that the bankrupt did not comply with those rules of the High Court which require documents to be filed by a certain date and, as a result, his application was deemed to be abandoned. At a prior hearing before me, the bankrupt told me that there were good reasons why he did not file the necessary documents and that they related to his health. He told me that he would be applying for a reinstatement of his application for special leave to appeal. Whether he has done so, or will do so, is not relevant to the issues raised by the application before me.
Case: Moore v Wilson [2005] FMCA 870 
Outcome: referred to
The bankrupt challenged the sequestration order which had been made by a Registrar of the Federal Magistrates Court. On 1 July 2005 a Federal Magistrate dismissed the bankrupt's application for review ( Moore v Wilson [2005] FMCA 870). The bankrupt appealed to this Court against the Federal Magistrate's order. On 10 February 2006 a Judge of this Court, exercising the appellate jurisdiction of the Court, dismissed the bankrupt's appeal ( Moore v Wilson [2006] FCA 79). The bankrupt then applied to the High Court for special leave to appeal from the Judge's decision. It seems that the bankrupt did not comply with those rules of the High Court which require documents to be filed by a certain date and, as a result, his application was deemed to be abandoned. At a prior hearing before me, the bankrupt told me that there were good reasons why he did not file the necessary documents and that they related to his health. He told me that he would be applying for a reinstatement of his application for special leave to appeal. Whether he has done so, or will do so, is not relevant to the issues raised by the application before me.