mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Anton Piller KG v Manufacturing Process Ltd [1975] EWCA Civ 12 ; [1976] Ch 55
Outcome: cited
Moreover, it seems to me that the approach proposed by the respondents is not consistent with the usual practice which applies to search orders. The terms of O 25B of the Federal Court Rules are to be considered in light of the practice which evolved in the years following the decision in Anton Piller KG v Manufacturing Process Ltd [1975] EWCA Civ 12 ; [1976] Ch 55. 29 Prior to the advent of the computer era, the practice was for a physical search to be conducted at the premises. Questions of relevance were not an issue, although provision was always made for the protection of material claimed to be privileged or confidential. The computer imaging which now takes place seems to me to be the equivalent of what Mr Cobden SC for the applicants called the "flick through", which took place in the searched premises in the days when only hard copy documents and other physical materials were the subject of searches. 30 I accept that the effect of the modern regime of computer imaging as applied in the present case is to grant an applicant a far more leisurely period in which to examine the seized materials than was previously available. This will be a particular concern where the seized materials are obtained from a trade competitor as has happened in the present case. This emphasises the draconian and exceptional nature of the remedy. 31 However, in order to obtain a search order an applicant must satisfy the stringent conditions laid down in O 25B r 3. As I have already noted, Allsop J was satisfied that the necessary conditions were met. His Honour was also satisfied that the search should not be limited to the precise cause of action known to the applicants when the search order was obtained.
Case: Home Office v Harman [1983] 1 AC 280
Outcome: cited
Order 14 provides for the respondents to file and serve affidavits setting out the nature and basis of any claim for privilege or confidentiality. Order 16 provides in effect for a complete release of the obligations arising from the principle in Home Office v Harman [1983] 1 AC 280. 20 On 16 October 2006 the computer experts prepared a report in accordance with Order 10. They stated that, in accordance with Order 7, they performed an independent analysis of the forensic images and extracted certain files from the images based upon the search regime. They stated that the results have been saved to a series of spreadsheets accompanying the report. 21 The computer experts' report was not provided to the solicitors for the respondents until 17 October 2006, and the relevant files ("Extracted Files") referred to therein were only made available for inspection on 8 November 2006. The solicitors inspected the Extracted Files and determined that there are approximately 284,000 electronic files in some 15,600 folders, and approximately 68,000 emails. Plainly the work involved in the search of that material to determine the existence of privileged or confidential material is significant. 34 With one exception, I am not satisfied that there are sufficient changed circumstances to warrant any amendments to the orders made on 7 September 2006. The exception is that the Home Office v Harman exemption, which is contained in Order 16, ought in my view to be deleted. In many instances such an exemption may be appropriate, but in the circumstances of the present case where the known infringement consisted of the sale of a limited number of gaming machines in Peru in 2000-2002 I do not think that the terms of Order 16 should be maintained. It seems to me to be contrary to the interests of justice in the case for them to remain as part of the court orders. It follows that I will make orders in terms of those that have been provided to me by senior counsel for the applicants. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 30 November 2006 Counsel for the Applicants: R Cobden SC with N Murray Solicitor for the Applicants: Baker &amp; McKenzie Counsel for the Respondents: J Ireland QC with M Green Solicitor for the Respondents: Paul Bard Lawyers Date of Hearing: 27 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1707.html
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: cited
It was, in my view, perfectly plain and should have been such to the appellant that the entirety of his claims and his credibility generally were in issue in the review. Against this background it cannot properly be said that any further inconsistencies exposed in his s 424A answers relating to his claims or any greater doubts his answers engendered about his credibility raised new or unexpected issues for which, in fairness, a further opportunity for comment ought to have been provided. To hold otherwise in the present case would be to give rise to what in a s 424A context, the High Court has described as "a circulus inextricabilis" of invitation and comment: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [20] . 17 What I have said is sufficient to warrant the dismissal of this appeal. I will order that (i) leave be given to raise the ground of appeal not raised below; (ii) the appeal be dismissed; and (iii) the appellant pay the first respondent's costs of the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 9 November 2007 Counsel for the Appellant: Mr R Turner Solicitor for the Appellant: Parish Patience Immigration Lawyers Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 November 2007 Date of Judgment: 9 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1713.html
Case: Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229
Outcome: cited
Finally, what constituted or might constitute serious harm amounting to persecution within the meaning of the Convention was a matter of fact and degree for the Tribunal: see Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 at 237-238 per Sundberg J. 6 The applicant has not sought to articulate any other basis upon which it might be considered or suggested that the Tribunal's decision is affected by jurisdictional error. 7 On 21 November 2006 I found that the applicant's medical certificate did not provide an adequate explanation for his non-attendance at the hearing on that day. I observed that the certificate did not address the question of why the condition referred to would prevent the applicant from travelling to Court and effectively participating in a hearing. Accepting that implicit in the delivery of the certificate was an application for an adjournment, I considered that the mere giving to the Court of a certificate without further explanation was not a proper basis for an adjournment.
Case: MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624
Outcome: referred to
On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance. I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J. The background to this application and the applicant's grounds of appeal filed on 18 August 2006 are set out in my reasons for judgment previously delivered on 21 November 2006: see MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624.
Case: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
Outcome: cited
The Tribunal also reached its conclusion about the absence of protection obligations on the basis of an independent reason. The Tribunal considered and dealt with a factual substratum of the applicant's claims. The Tribunal was not satisfied that even if the claimed circumstances existed in Pakistan they would give rise to serious harm amounting to persecution. I cannot find any basis for the conclusion that the Tribunal misconstrued or misapplied section 91R of the Migration Act 1958 (Cth). Nothing in the Tribunal's reasons suggest that it treated the examples in s 91R(2) as an exhaustive statement of what constituted or might constitute serious harm: see VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [60] to [66] per Merkel J. The Tribunal was entitled to consider those examples set out in subsection 91R(2) for guidance: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [13] .
Case: SZFYC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1810
Outcome: cited
In my view the Federal Magistrates Court decision discloses no error. There is nothing to indicate that the Tribunal's finding were not open to it on the evidence. It cannot be said the Tribunal failed to take into account any relevant consideration or took into account an irrelevant consideration or asked itself the wrong question. The Tribunal was not satisfied the applicant's claims demonstrated any Convention nexus. This was a finding of fact, which on the evidence before it was open to be made by the Tribunal: see SZFYC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1810 at [22] .
Case: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Outcome: cited
On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance. I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J. The background to this application and the applicant's grounds of appeal filed on 18 August 2006 are set out in my reasons for judgment previously delivered on 21 November 2006: see MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624.
Case: VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332
Outcome: cited
The Tribunal also reached its conclusion about the absence of protection obligations on the basis of an independent reason. The Tribunal considered and dealt with a factual substratum of the applicant's claims. The Tribunal was not satisfied that even if the claimed circumstances existed in Pakistan they would give rise to serious harm amounting to persecution. I cannot find any basis for the conclusion that the Tribunal misconstrued or misapplied section 91R of the Migration Act 1958 (Cth). Nothing in the Tribunal's reasons suggest that it treated the examples in s 91R(2) as an exhaustive statement of what constituted or might constitute serious harm: see VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [60] to [66] per Merkel J. The Tribunal was entitled to consider those examples set out in subsection 91R(2) for guidance: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [13] .
Case: SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298
Outcome: cited
appellant filed a Notice of Appeal before this Court on 11 July 2008 which raised three grounds of appeal. On the hearing of the appeal, the appellant represented by Mr Newman of Newman &amp; Associates, sought to abandon the prosecution of any of those grounds and sought leave to amend the Notice of Appeal to rely upon one new ground of appeal. The appellant now contends that the primary judge erred by failing to find jurisdictional error on the part of the Tribunal as it disregarded: ... much of the appellant's corroborative evidence without ascribing reasons or, alternatively, misapplying the ruling in SZANI v MIMIA [2004] FCA 1298 , Tamberlin J. In further elaboration of that ground, the appellant says the Tribunal failed to exercise its statutory review function as it applied, in error, an analytical method of first assessing the creditworthiness of the appellant and then, having formed an unfavourable view of the appellant's credibility, concluded, wrongly, that it was entitled to reject the whole of the appellant's corroborative evidence without subjecting that evidence to any assessment or ascribing any reasons for rejecting the evidence. The Minister opposes the application for leave to amend the notice of appeal. The Notice of Appeal filed on 11 July 2008 is a handwritten notice filed by the appellant under her own hand. She does not appear to have been represented by a lawyer in preparing and filing that document. The appellant was initially represented in the Federal Magistrates Court proceedings by Mr Newman. For reasons which do not need to be repeated here, the hearing of the proceeding before the Federal Magistrates Court was adjourned. Mr Turner of Parish Patience Immigration Lawyers appeared for the appellant on the adjournment application and later acted for her in the conduct of the hearing. Mr Newman now acts for the appellant in the appeal. The appellant as advised by Mr Newman now seeks to agitate the new and only ground of appeal. Thirdly, guidance in the approach to the utility of corroborative statements can be found in the decision of Tamberlin J in SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 and the reference in that decision to the reasons of the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 , which suggest to the Tribunal that where there is a finding by the Tribunal that the evidence of the appellant is fundamentally "discredited", any purportedly corroborative material presented in support of a discredited version of events, may be discarded. That is not this case. The Tribunal seems to have cited SZANI to illustrate the quoted reference to WAEJ v MIMIA . In that case, the Full Court, Lee, Hill and Marshall JJ at [52] noted the class of case where an appellant's evidence is so discredited that corroborative evidence presented in support of the primary claims "could be discarded without further analysis".
Case: WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188
Outcome: cited
preceding those observations, the Tribunal contextualised its conclusions concerning the weight and utility of the witness statements by making this observation: In SZANI v MIMIA [2004] S[F]CA 1298 Tamberlin J referred to the decision of WAEJ v MIMIA [2003] FCAFC 188 where the Full Court at page [para] 52 said: "On its face the foregoing was a statement by the RRT that the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non authentic, or forged, document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis (emphasis added by the Full Federal Court)." [There is no emphasis in the quoted passage] The sequence of reasoning adopted by the Tribunal seems to have been reflected in four steps. Firstly, the Tribunal has "duly considered" the information from the appellant's witnesses relating to the appellant's engagement with Maoist groups or her husband's engagement with such groups and has duly considered information from these witnesses relating to the "consequences of such connections". Secondly, the nature and degree of the credibility problems the Tribunal has with the evidence of the appellant is such that the witness statements cannot be redemptive of the poisoned well of credibility, that is, the Tribunal cannot give the statements such weight "as can help resolve the appellant's credibility problems in relation to her claims about abuse in Nepal". Thirdly, guidance in the approach to the utility of corroborative statements can be found in the decision of Tamberlin J in SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 and the reference in that decision to the reasons of the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 , which suggest to the Tribunal that where there is a finding by the Tribunal that the evidence of the appellant is fundamentally "discredited", any purportedly corroborative material presented in support of a discredited version of events, may be discarded.
Case: Minister for Immigration v Yusuf (2001) 206 CLR 223
Outcome: cited
this case, the Tribunal has considered the evidence of the witnesses called by the appellant and has concluded that the content of the evidence does not overcome the Tribunal's conclusions about the reliability of the primary evidence of the appellant. In SZANI v MIMIA , Tamberlin J concluded that the Tribunal's failure to make "any reference" [22] to the documents in question and the Tribunal's failure "to refer to, consider, or give reasons for rejection of the documents" [25] constituted jurisdictional error. In other words, the Tribunal had "ignored" relevant material in the sense contemplated by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 206 CLR 223 at [82]. In this case, the Tribunal comprehensively examined the primary case first put by the appellant. The Tribunal considered the evidence of the witnesses called by the appellant and reached the conclusions already identified. The Tribunal did not simply ignore the evidence in the sense contemplated in Minister for Immigration v Yusuf (supra). The point of principle referred to in the reasoning of the Chief Justice in Applicant S20/2002 remains determinative, whether the particular evidence is a document or a statutory declaration or embraces oral evidence.
Case: SZIEW v Minister for Immigration and Citizenship 101 ALD 295
Outcome: cited
appellant says that SZIEW v Minister for Immigration and Citizenship 101 ALD 295 per Madgwick J is authority for the proposition that a failure by the Tribunal to accord separate deliberative reasons for the rejection of the evidence of each witness is a failure to exercise jurisdiction. In that case, Madgwick J concluded that the Tribunal wrongly accorded the evidence of a witness "little weight" for the sole reason that the Tribunal had no opportunity to test the claims made by a witness that her relative had been captured and had heard certain things about the particular applicant's husband. The case also concerned events in Nepal. Having regard to the inquisitorial role of the Tribunal and its statutory function, the rejection of the evidence of a witness as to the statements made to the witness by her relative, on the sole ground identified by the Tribunal, reflected error.
Case: Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325
Outcome: referred to
The term "staple commercial product" is not defined in the Act, and there is a dearth of authority on the topic in Australia: per Stone J in Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 at 331; [2005] FCA 1218 at [30] . In Theta Developments Pty Ltd v Leonardis (2002) 59 IPR 368 at 384; [2002] FCAFC 170 at [100] Wilcox and French JJ held that a spacer for foundation fastenings was a "staple commercial product", but there is no discussion in that case of that expression which directly pertains to the present issue. Dowsett J, the other member of the Full Court, did not need to expressly address the issue.
Case: Theta Developments Pty Ltd v Leonardis (2002) 59 IPR 368
Outcome: cited
The term "staple commercial product" is not defined in the Act, and there is a dearth of authority on the topic in Australia: per Stone J in Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 at 331; [2005] FCA 1218 at [30] . In Theta Developments Pty Ltd v Leonardis (2002) 59 IPR 368 at 384; [2002] FCAFC 170 at [100] Wilcox and French JJ held that a spacer for foundation fastenings was a "staple commercial product", but there is no discussion in that case of that expression which directly pertains to the present issue. Dowsett J, the other member of the Full Court, did not need to expressly address the issue.
Case: Pavel v Sony Corporation (CA (UK), 13 January 1993, unreported)
Outcome: referred to
The phrase "staple commercial product" also appears in s 60(3) of the Patents Act 1977 (UK). In Pavel v Sony Corporation (CA (UK), 13 January 1993, unreported) the Court at [6.4] to [6.5] held that the term means a product that is of a kind which is needed every day and is generally obtainable. See also the brief discussion in Lahore, Patents, Trade Marks and Related Right , Butterworths, 2006 at [18,285], fn 1. The term "staple article commodity of commerce suitable for substantial non-infringing use" appears in the United States Code Patents (35 USC, s 271 (1952)). As discussed by A Monotti, "Contributory Infringement of a Process Patent under the Patents Act 1990 : Does it Exist after Rescare?" (1995) 6 AIPJ 217 at 218-221, both the UK and the US provisions were said to be of significance to the Industrial Property Advisory Committee in its Report, "Patents, Innovation and Competition in Australia" (AGPS, Canberra, 1984) leading to the Act. That background does not, however, itself give meaning to the words of s 117 as enacted, although of course it is of assistance in construing those words. 30 It is not necessary to explore fully the content of that expression. The Collins accepted that, but for one feature, the timber was a staple commercial product. The distinguishing feature, it was said, was that the Territory had "written off" the trees on the Howard Springs land as a commercial crop for use as timber (which they described as included within the term silverculture) in November 1995, and therefore that the Territory thereafter regarded the Howard Springs land as only suitable for clearing so that the licences permitting the removal of the timber were merely part of a "salvage" operation. Silverculture, they said, included forestry operations for commercial timber, woodchips, aesthetics, and other commercial uses. But for having been "written off", there would (as the Collins submitted) have been no issue but that the timber was a staple commercial product. 31 I accept that, in November 1995 or thereabouts, the Territory decided upon advice that the trees on the relevant property at Howard Springs were not of sufficient quality for their initially intended use for commercial timber and other associated products.
Case: Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1
Outcome: discussed
As counsel for the Territory recognised, there is an apparent difference in the views of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 ( Rescare ) on the one hand and in Bristol-Myers Squibb Company v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 ( Bristol-Myers ) on the other, as to the construction of s 117(1).