mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Potter v The Broken Hill Pty Co Ltd [1906] HCA 88 ; (1906) 3 CLR 479
Outcome: cited
The " Mo&ccedil;ambique rule" has been held to apply to intellectual property rights. In Potter v The Broken Hill Pty Co Ltd [1906] HCA 88 ; (1906) 3 CLR 479 ( Potter ), the High Court held that a cause of action for infringement in New South Wales by a Victorian company carrying on mining operations in New South Wales, of the plaintiff's patent issued under the Patents Act 1899 (NSW), was not justiciable in Victoria. 41 In Potter the High Court described one exception to the Mo&ccedil;ambique rule (at 498-499 per Griffith CJ): The Courts will no doubt entertain such a question of title if it arises merely incidentally in a case in which the foundation of the jurisdiction is a personal obligation arising from contract or quasi-contractual relationship between the parties.
Case: RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22
Outcome: cited
The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ). 31 Similarly, in RGC v Wimmera , I held that representations made to the Commissioner of Patents in an opposition proceeding were not made in trade or commerce for the purposes of s 52 of the TP Act .
Case: Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52
Outcome: cited
In Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52, Finkelstein J recognised that the Mo&ccedil;ambique rule was subject to exceptions.
Case: Tyburn Productions Limited v Conan Doyle (1990) 19 IPR 455
Outcome: cited
In Tyburn Productions Limited v Conan Doyle (1990) 19 IPR 455, the High Court of England held that an issue as to the existence or non-existence of rights under United States copyright, unfair competition and trademark laws was not justiciable in the English courts.
Case: Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422
Outcome: cited
The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ).
Case: Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330
Outcome: cited
The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ).
Case: Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531
Outcome: cited
It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subpars (a), (b) and (c) of that rule. Subpar (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]: "(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]."
Case: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Outcome: applied
It is unnecessary for me to refer in detail to the growing body of case law on preliminary discovery. It is sufficient for present purposes to refer to the following. The O 15A r 3 power to order identity discovery is not to be used in favour of a person who intends to commence merely speculative proceedings. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person wished to be sued: Hooper v Kirella at [33]. Information discovery under O 15A r 6 is significantly limited by the conditions imposed in subpars (a), (b) and (c) of that rule. Subpar (a) requires that there be reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court. While the threshold test under this subrule may be set at quite a low level: see Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] ; the test for determining whether the applicant has a reasonable cause to have the requisite belief is an objective one: see Hooper v Kirella at [39]. Though it is not necessary to demonstrate a prima facie case, it is not enough merely to assert that there is, or is the mere possibility of, a case against the prospective respondent: Hooper v Kirella at [39]. Importantly, as Hely J observed in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at [26]: "(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]."
Case: Airservices Australia Ltd v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200
Outcome: cited
While O 15 r 6 expressly contemplates "fishing", it equally requires that each of the limiting conditions prescribed in subpars (a), (b) and (c) must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia Ltd v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at [5] . 8 Before outlining the factual setting of this matter I should indicate that it has undergone a significant transformation since the hearing of the application. I gave the applicants leave to file supplementary submissions directed primarily to the prospective causes of action they might wish to pursue. They have acted upon this leave and, in quite some degree, have recast their cases for present purposes. This explains why matters which received some attention at the hearing are only dealt with cursorily in these reasons. 9 Much in the detail of what follows relates only to the first applicant, Scott Rush, and gives rise to potential claims unique to him. As will become apparent, the cases of the other three applicants arise from their involvement in events in which Scott Rush as well was implicated. The evidence in this matter was given by way of affidavit and without cross-examination. In relation to Rush's case I should also indicate that a number of affidavits have been read which expose significant conflicts of evidence between witnesses. I should indicate that I have not been asked in the circumstances to make findings in relation to contested issues of fact in the material before me, the respondent being prepared to accept that their resolution is for another day, if at all.
Case: Enever v The King [1906] HCA 3 ; (1906) 3 CLR 969
Outcome: cited
The AFP Act and the Australian Federal Police Regulations made under it apply both throughout and also "outside Australia": the AFP Act , s 5A. Finally, in abolishing the "independent discretion" rule exemplified in Enever v The King [1906] HCA 3 ; (1906) 3 CLR 969, s 64B provided (insofar as presently relevant) that: "(1) The Commonwealth is liable in respect of a tort committed by a member in the performance or purported performance of his or her duties as such a member in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member." 36 This Act assumed its presently relevant form as a result of amendments made to it in 1996. The 1996 legislation aimed (to quote the "Outline" to the Explanatory Memorandum to the 1996 Bill) to: " clarify the areas in which mutual assistance in criminal matters may only be sought by the Attorney-General and the areas in which assistance may be sought using other channels enable the Attorney-General to grant or request assistance without the Act having to be applied by regulation to a particular country give the Attorney-General a discretion to refuse assistance where the request relates to the prosecution or punishment of a person for an offence in respect of which the death penalty could be imposed or carried out enable the Attorney-General to refuse assistance where he considers it appropriate in the circumstances of a particular request." 37 The areas in which a request was required to be made by the Attorney-General, or to the Attorney-General in respect of a request by a foreign country, for international assistance in a criminal matter, were specified in the Act. Put shortly, they related to matters that would require either Australia (in respect of a foreign request) or the foreign country (in respect of an Australian request) to exercise coercive powers: see ss 5, 7, 10 and 11 and Parts II to VIIA of the Act; see also Second Reading Speech, Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996, House of Representatives, Wed 26 June 1996, 2831-2832.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47
Outcome: cited
Other provisions both of the Mutual Assistance Act and of the Mutual Assistance Treaty with Indonesia make plain that no such limitation on the making of other requests was so intended. Section 6 of the Act expressly states that the Act does not prevent the provision etc of international assistance in criminal matters other than assistance of a kind that may be provided under that Act. Section 5 (the objects provision) states the purpose of the Act to be (inter alia) to facilitate the obtaining by Australia of international assistance in criminal matters: s 5(c). The interpretation of s 10(2) proposed by the applicants impedes rather than advances that purpose especially in light of s 6. Distinctly, the Mutual Assistance Treaty (the provisions of which limit the applicability of the Mutual Assistance Act to requests between Australia and Indonesia: see s 7(3)(a)) expressly provides that the Treaty does not derogate from obligations subsisting between the contracting parties, nor does it prevent them from providing assistance to each other: Art 2. Finally, if Parliament had intended through s 10(2) to impose such a fetter on obtaining international assistance in criminal matters as the applicants submit, thereby precluding the taking of such action as would otherwise be mandated by other legislation (e.g. the AFP Act : see below), one would have expected it to have spoken with far greater clarity than it has, the moreso given the purpose of the Act noted above: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47 at 63-64. 63 I am in consequence satisfied that, on the proper construction of the Mutual Assistance Act, any foreshadowed cause of action founded on that Act must fail. In the circumstances it provides the applicants with no basis for any reasonable cause to believe they may have a right to obtain relief in this Court. 64 In supplementary submissions, the focus of the applicants' prospective ultra vires case turned to the provisions of the AFP Act . The relevant provisions of this Act and of directions given under it are set out at [33] to [35] above. It is now contended that the functions and powers set out in ss 8 and 9 of that Act, when read in context, do not include, authorise or justify any act or decision made by an AFP member which exposes an Australian citizen to the death penalty, whether in Australia or overseas. The context referred to in this submission is said to be provided by the Death Penalty Abolition Act 1973 ("the Abolition Act "), the provisions of s 8(1A) and (1B) of the Mutual Assistance Act, unambiguous Australian Government policy which is opposed to the death penalty (at least for its citizens) and Australia's signing of the Second Optional Protocol to the ICCPR.
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
It is now well accepted that the modern approach to statutory interpretation requires that "context" be considered at the first instance, not merely at some later stage when ambiguity might be thought to arise. "Context" here is used in a wide sense and includes legal and historical context: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408; Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 at [36] ; see also Allsop, "Statutes: Context, Meaning and Preenactment History", Jo of NSW Bar Assoc, Winter 2005, 19 ff. It is questionable whether any of the matters relied upon are relevantly contextual for the purposes of interpreting s 8 of the AFP Act .
Case: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256
Outcome: cited
It is now well accepted that the modern approach to statutory interpretation requires that "context" be considered at the first instance, not merely at some later stage when ambiguity might be thought to arise. "Context" here is used in a wide sense and includes legal and historical context: see CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408; Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 at [36] ; see also Allsop, "Statutes: Context, Meaning and Preenactment History", Jo of NSW Bar Assoc, Winter 2005, 19 ff. It is questionable whether any of the matters relied upon are relevantly contextual for the purposes of interpreting s 8 of the AFP Act .
Case: Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292
Outcome: cited
The international treaties and instrument that have been ratified by Australia and on which the applicants rely have not as such been incorporated into Australian law by express enactment. The Abolition Act pre-dated Australia's signing up to the Second Optional Protocol to the ICCPR. Neither the Abolition Act nor the Protocol addresses action taken by Australian public officers or agencies vis-&agrave;-vis foreign law enforcement agencies in connection with offences in their jurisdiction which can there attract the death penalty. Neither expressly or impliedly prohibits taking such action as, for example, the provision of information of the type contained in the Hunniford letters. Neither expressly betrays an intent in relation to such action. The Abolition Act cannot thus properly be used to read down s 8 of the AFP Act . The Second Optional Protocol only came into effect for Australian purposes years after the enactment of s 8. It provides no contextual aid to the section's interpretation. In any event it imposes no obligation on a Contracting Party vis-&agrave;-vis a non-contracting party in respect of the former's dealings with the latter in relation to offences in the latter jurisdiction which can attract the death penalty. Even if s 8 was relevantly ambiguous, the Second Optional Protocol could not assist in resolving that ambiguity: see Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 at 306; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-304. 76 The applicants initially sought to contend that they had in Australian law an enforceable right to life and not to be executed. The ICCPR and the Second Optional Protocol were invoked to this end. This was later abandoned, as it had to be. The provisions of an international treaty do not form part of Australian law merely because Australia is a ratifying party to it. For that reason neither the ICCPR nor the Second Optional Protocol of itself "operate[s] to give rights to or impose duties on members of the Australian community: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [35] ; see also Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292 at 305-306.
Case: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298
Outcome: cited
The international treaties and instrument that have been ratified by Australia and on which the applicants rely have not as such been incorporated into Australian law by express enactment. The Abolition Act pre-dated Australia's signing up to the Second Optional Protocol to the ICCPR. Neither the Abolition Act nor the Protocol addresses action taken by Australian public officers or agencies vis-&agrave;-vis foreign law enforcement agencies in connection with offences in their jurisdiction which can there attract the death penalty. Neither expressly or impliedly prohibits taking such action as, for example, the provision of information of the type contained in the Hunniford letters. Neither expressly betrays an intent in relation to such action. The Abolition Act cannot thus properly be used to read down s 8 of the AFP Act . The Second Optional Protocol only came into effect for Australian purposes years after the enactment of s 8. It provides no contextual aid to the section's interpretation. In any event it imposes no obligation on a Contracting Party vis-&agrave;-vis a non-contracting party in respect of the former's dealings with the latter in relation to offences in the latter jurisdiction which can attract the death penalty. Even if s 8 was relevantly ambiguous, the Second Optional Protocol could not assist in resolving that ambiguity: see Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 at 306; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-304.
Case: Rodriguez v United States 480 US 522 (1987)
Outcome: cited
It may be possible to discern in Australian legislation, treaties, official guides, etc a declared antipathy to the death penalty. That antipathy, though, has not been pursued unqualifiedly in our legislation and guides in relation to dealings with foreign countries in respect of matters which could attract the imposition of the death penalty: cf the Mutual Assistance Act ss 8(1A) and (1B) and the Extradition Act 1998 (Cth) s 22(3)(c). It is unsurprising that it has not. In particular contexts, the call of other public interests may be the more powerful. As was said in Rodriguez v United States 480 US 522 (1987) at 526: "Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice".
Case: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438
Outcome: cited
The applicants initially sought to contend that they had in Australian law an enforceable right to life and not to be executed. The ICCPR and the Second Optional Protocol were invoked to this end. This was later abandoned, as it had to be. The provisions of an international treaty do not form part of Australian law merely because Australia is a ratifying party to it. For that reason neither the ICCPR nor the Second Optional Protocol of itself "operate[s] to give rights to or impose duties on members of the Australian community: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [35] ; see also Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292 at 305-306.