mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NARE of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 135
Outcome: referred to
authorities reveal that an applicant for a protection visa must advance whatever evidence or arguments he or she wishes to rely on in support of his or her claim for a protection visa ( Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [189] ; NARE of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 135 at [15] ). As Wilcox J observed in Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169-170: 'The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries.' It would not be appropriate to grant the appellant leave to raise the issue simply because, as he contended, it would be just to allow him to do so (see NARE of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs at [16]). The decision of the Tribunal may only be set aside for jurisdictional error. The Tribunal did not make a jurisdictional error by failing to consider a claim which the appellant did not make. In all of the circumstances I conclude that the appellant should not be granted leave to raise before this Court the issue of whether the Tribunal was under a duty to make enquiries about whether the expiry of the appellant's passport was likely to lead to a chain of events resulting in his being persecuted for reasons of imputed political opinion should he return to Jordan. The affidavit of the appellant is therefore not admissible as its contents are irrelevant to any issue to be determined on this appeal (see [15] above). I turn, then, to the original written submissions of the appellant.
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155
Outcome: cited
authorities reveal that an applicant for a protection visa must advance whatever evidence or arguments he or she wishes to rely on in support of his or her claim for a protection visa ( Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [189] ; NARE of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 135 at [15] ). As Wilcox J observed in Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169-170: 'The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries.'
Case: Pyrenees Shire Council v Day [1998] HCA 3 ; (1998) 192 CLR 330
Outcome: cited
important aspect of the inquiry as to whether it would be expedient in the interests of justice to allow the appellant to raise before this Court an issue not raised before the Federal Magistrates Court is the apparent merit of the issue. The appellant placed reliance on the High Court decisions in Pyrenees Shire Council v Day [1998] HCA 3 ; (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 167 ALR 1. These cases concerned the law of negligence; it was in that private law context that the High Court gave consideration in each case to whether an affirmative common law duty of care required a statutory or public authority to exercise a power. The present case by contrast concerns public law principles of judicial review.
Case: SLMB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 129
Outcome: cited
first obstacle in the way of the appellant relying on these fresh grounds of appeal is that he did not rely on them before the Federal Magistrates Court. Leave is required to argue on appeal an issue not raised below. The Court must be satisfied that it is expedient in the interests of justice for the issue to be raised for the first time on appeal ( SLMB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 129). Neither the supplementary submissions of the appellant nor his affidavit address this issue. In particular they provide no explanation of why the appellant did not tell either the Tribunal or the Federal Magistrates Court of his belief concerning the experience of his friend on return to Jordan and of his own fear of experiencing persecution in Jordan because of his claim for a protection visa (see [16] above). His contention that a Jordanian citizen who returns to that country after unsuccessfully seeking an Australian protection visa faces a real risk of persecution for reason of imputed political belief does not, it seems, depend upon the expiry of travel documentation. He has not suggested that his friend's passport had expired. Revelation of what the appellant believes happened to his friend would not have required disclosure of the appellant's unwise conduct concerning his own passport.
Case: Boehringer Ingelheim International GmbH v Commissioner of Patents [2001] FCA 647 ; (2001) 112 FCR 595
Outcome: applied
Mr Macaw referred to the judgment of a Full Court of this Court in Boehringer Ingelheim International GmbH v Commissioner of Patents [2001] FCA 647 ; (2001) 112 FCR 595 (" Boehringer "). He submitted that Boehringer was authority for the proposition that the requirement that a patent involve a claim to a "pharmaceutical substance per se " requires more than that a pharmaceutical substance simply forms some element of the claim or claims. Mr Macaw also relied upon Boehringer as authority for the proposition that, in order to satisfy the requirements of s 70(2)(a) , the pharmaceutical substance must fall within the scope of the claim, that is, it must be included among the things claimed.
Case: Lockwood Security Products Pty Ltd v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274
Outcome: cited
Mr Caine next referred to the requirement under s 70(2)(a) that a patent disclose and include within the scope of the claims a pharmaceutical substance per se . He rejected Mayne's submission that the Patent did not disclose or claim a pharmaceutical substance per se , but rather a pharmaceutical substance produced by a defined process or method. He submitted that the question whether claim 1, as currently formulated, identified a pharmaceutical substance per se , or extended into the realms of process or method, had to be approached as a matter of substance, and not form. That is, it was a question to be resolved by considering the scope of the claim "broadly, that is to say in a general sense": Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95 per Gummow J, cited with approval by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274 at [69] .
Case: Prejay Holdings Ltd v Commissioner of Patents (2003) 57 IPR 424 
Outcome: referred to
In addition, Mr Macaw referred to the later judgment of a Full Court of this Court in Prejay Holdings Ltd v Commissioner of Patents (2003) 57 IPR 424 (" Prejay "), where the decision in Boehringer was expressly approved. The Court in Prejay held that s 70(2)(a) requires a pharmaceutical substance itself to be an integer of a claim in the relevant patent. It is not enough that the substance appears in a claim in combination with other integers, or as part of the description of a method (or process) that is the subject of a claim. The Court noted at [24] that "[t]he policy adopted in s 70 was to confine extensions to patents that claim invention of the substance itself". 41 Mr Macaw submitted that claim 1 had the following process components, and therefore was not a claim to a pharmaceutical product per se : "(a) the product of claim 1 must be made by a process other than by reconstitution from a lyophilizate (in a vial immediately prior to administration); (b) the salt of the active ingredient must have been dissolved in an aqueous solvent; (c) the product must be made by a process of adjustment of the pH into a range of between 2.5 and 5.0; (d) that adjustment must solely have been done with a physiologically acceptable acid." 42 According to Mr Macaw, it was not any anthracycline glycoside solution that would infringe claim 1, but only a solution obtained in accordance with the process integers of that claim. He referred to a series of amendments that Pharmacia had made to the form in which claim 1 was drafted at various stages. He contended that by adding "pH adjustment integers", for example, Pharmacia appeared to have made a conscious decision to include a process element in the claim, thereby widening the scope of the protection sought for its product. It was in part for this reason that Mr Macaw contended that the product of claim 1 was defined by the process by which it was obtained. 54 In his submissions, Mr Caine distinguished claim 1 from the claims considered in Boehringer, and in Prejay . He noted that in Boehringer the claim had not been limited to a pharmaceutical substance alone, but included a container with a nozzle designed to deliver that substance. He also noted that in Prejay the claim had been expressed in terms of a method for treating menopausal women using a transdermal patch to provide continuous dosages of progesterone and estrogen. He submitted that in each case, whilst the invention claimed was patentable, the claim related to a known substance coupled with a novel delivery system. He contended that this was in marked contrast to the invention the subject of the Patent, which claimed a new and inventive pharmaceutical substance, on its own.
Case: Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79
Outcome: cited
Mr Caine next referred to the requirement under s 70(2)(a) that a patent disclose and include within the scope of the claims a pharmaceutical substance per se . He rejected Mayne's submission that the Patent did not disclose or claim a pharmaceutical substance per se , but rather a pharmaceutical substance produced by a defined process or method. He submitted that the question whether claim 1, as currently formulated, identified a pharmaceutical substance per se , or extended into the realms of process or method, had to be approached as a matter of substance, and not form. That is, it was a question to be resolved by considering the scope of the claim "broadly, that is to say in a general sense": Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95 per Gummow J, cited with approval by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Limited [2004] HCA 58 ; (2004) 217 CLR 274 at [69] .
Case: AWB Limited v Cole [No 2] (2006) 233 ALR 453
Outcome: followed
AWB Limited v Cole [No 2] (2006) 233 ALR 453 at 460-463 [26]-[40], Young J reviewed the authorities from which (without reciting the authorities to which his Honour referred) I have taken the following principles: (1) As a general rule the starting point is that all issues of fact and law should be determined at the one time. (2) A party seeking the determination of separate questions must satisfy the Court that it is "just and convenient" for the order to be made. The order must be made on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties so as to produce a conclusive or final judicial decision on the issue, which is of a real, not hypothetical, importance to the determination of the controversy. (3) There are special problems where the separate issue involves a mixed question of fact and law, although it may still be able to be decided as a separate issue. However, care must be taken in precisely formulating the question and specifying the facts upon which it is to be decided. (4) The Court must have all relevant matters before it as a precondition of it being asked to exercise its discretion if the separate question involves the grant or refusal of declaratory relief. (5) It may still be appropriate to determine a separate question even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or if the decision will obviate unnecessary and expensive hearings of other questions. (6) Generally speaking an issue will not be appropriate for separate determination if it is simply one of two or more alternative ways in which an applicant or plaintiff frames its case and its determination would leave other significant issues unresolved. (7) It is relevant to consider whether:
Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38 ; (2008) 166 FCR 494
Outcome: cited
the evidence will be relevant to whether the meaning of the expression "Claims" when used in the impugned clauses extends to any claims that might be made against Lehman companies other than Lehman Australia, notwithstanding the definition of "Claims" in the deed. While, no doubt, substantial arguments will be used to illuminate the rival constructions, little evidence will be relevant to placing the Court into the position that a reasonable person in the position of the parties would have occupied so as to be able to understand the genesis of the transaction, the background, context and circumstances by reference to which the deed was resolved to be made: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 178-180 [36] , [41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293 [9] - [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38 ; (2008) 166 FCR 494 at 510-512 [50] - [53] where I considered the authorities.
Case: Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447
Outcome: cited
Bros was joined as the fifth defendant at its request on 16 July 2009. It argued that it wished to lead unspecified further evidence as to the surrounding circumstances of the making of the deed, as well as evidence that would support its rectification claim. It did not elaborate how this evidence could go beyond the evidence of the factual matrix on which the parties to the proceedings may rely on issues of construction, in order to establish the relevant common intention of the parties, being the creditors (including Lehman Asia), Lehman Australia and the administrators: cf Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 per Wilson J at 452, with whom Gibbs CJ agreed at 448, per Brennan J at 456. Lehman Bros argued that if the questions were answered favourably to the plaintiffs then one of two results followed, either the deed was not a deed of company arrangement and fell outside the scope of Pt 5.3A or, it fell within the scope of the Part but was void. In the latter case remedial options in Pt 5.3A were available and there would be substantial arguments that the Court should exercise a discretion to give effect to the wish of the majority of creditors by value and number voting at the meetings. On the other hand, Lehman Bros accepted that if the plaintiffs were correct and the Court could not make any orders remedying the deed, it would seek termination of the deed, as well as the plaintiffs, since its rights were prejudiced. Lehman Bros argued that it had only agreed to subordinate its debt in the proposed arrangement in order to obtain the releases.
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289
Outcome: cited
the evidence will be relevant to whether the meaning of the expression "Claims" when used in the impugned clauses extends to any claims that might be made against Lehman companies other than Lehman Australia, notwithstanding the definition of "Claims" in the deed. While, no doubt, substantial arguments will be used to illuminate the rival constructions, little evidence will be relevant to placing the Court into the position that a reasonable person in the position of the parties would have occupied so as to be able to understand the genesis of the transaction, the background, context and circumstances by reference to which the deed was resolved to be made: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 178-180 [36] , [41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293 [9] - [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38 ; (2008) 166 FCR 494 at 510-512 [50] - [53] where I considered the authorities.
Case: Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1
Outcome: discussed
Australia and the administrators argued that questions 1 and 2 were founded on the false assumption that apart from cl 7.1, the plaintiffs had an unqualified right, superior to Lehman Australia itself, to conduct, prosecute or resolve litigation with that company's insurers. It argued that the construction of cl 11.5 was not a matter of controversy and that it related only to claims against Lehman Australia being released. It argued that this construction would defeat the plaintiffs' contention that cl 11.5 was wider than its apparent terms. (As appears above, Lehman Bros disputes this construction.) Lehman Australia also argued that if the impugned provisions could not be supported by Pt 5.3A of the Act, then the deed would still be valid but those clauses would not be an operative part of the deed. Lehman Australia argued that if question 6 were answered "no", it would not follow that the deed would then become ineffective or void. Accordingly it argued that question 6 was of no utility to resolve any issue. Lehman Australia referred to the dangers of separate issues discussed in Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 and Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334. In Tepko (2001) 206 CLR at 55 [168]-[170], Kirby and Callinan JJ observed in their dissenting judgment that the attractions of trials of issues rather than of cases in their totality are often more chimerical than real. They noted that common experience demonstrated that saving in time and expense were often illusory, particularly when they overlapped within parties' preparation for other factual matters. They said that a party might feel aggrieved if their case were knocked out on the trial of a preliminary or single issue, and might suspect that the abbreviated course had been adopted to meet the court's, rather than the parties', interests. And they noted that there was a potential for further appeals, particularly if the separate issue having been decided one way initially were reversed on appeal and the matter sent back for a full trial of the whole of the issues.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
the evidence will be relevant to whether the meaning of the expression "Claims" when used in the impugned clauses extends to any claims that might be made against Lehman companies other than Lehman Australia, notwithstanding the definition of "Claims" in the deed. While, no doubt, substantial arguments will be used to illuminate the rival constructions, little evidence will be relevant to placing the Court into the position that a reasonable person in the position of the parties would have occupied so as to be able to understand the genesis of the transaction, the background, context and circumstances by reference to which the deed was resolved to be made: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 178-180 [36] , [41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 292-293 [9] - [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38 ; (2008) 166 FCR 494 at 510-512 [50] - [53] where I considered the authorities.
Case: SZKRP v Minister for Immigration &amp; Anor [2007] FMCA 1720
Outcome: cited
This appeal is from a judgment of the Federal Magistrates Court, given on 3 October 2007, and designated as SZKRP v Minister for Immigration &amp; Anor [2007] FMCA 1720. The learned Federal Magistrate dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 17 April 2007 and handed down on 8 May 2007. The Tribunal dismissed an application by the appellant for review of a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, refusing to grant to the appellant a protection visa under the Migration Act 1958 (Cth) ("the Migration Act "). 2 The appellant is a citizen of India. He first arrived in Australia on 26 October 2006. He returned to India on 5 November 2006 and re-entered Australia on 1 December 2006. He then applied for a protection visa on 7 December 2006. The Minister's delegate made the decision refusing to grant the visa on 6 February 2007. 3 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments taken together the "Convention." For present purposes it is sufficient to note that Australia has protection obligations to a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
Case: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160
Outcome: followed
power to grant a dispensation from the need to comply with the requirement that an approved summary of the scheme has been given to every effected policy holder under s 17C(5) is not conditioned to occur at any particular time prior to the actual order for the making of the confirmation of the scheme. The conditions in s 17C(2) and its analogues under the Act are not preconditions to the power to order confirmation of a scheme and a failure to comply strictly with them will not prevent the Court confirming a scheme: Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160 at 162C per Emmett J; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 40 [16] - [18] per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 at 458-459 [31] - [37] , 463 [62]-[63] per Lindgren J.