mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317
Outcome: cited
is well established that the test of a prima facie case for the purposes of O 8 r 2 is whether there is material before the Court from which inferences are open that, if translated into findings of fact, would support the relief claimed State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J) affirmed on appeal in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317.
Case: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581
Outcome: cited
Section 723 of the Act does not impose an obligation to lodge a quotation application within seven days of the date of a prospectus. Strictly speaking, read with s 724, it simply attaches certain consequences to the failure to do so. Nevertheless, s 1322(4)(d) has been construed as authorising an extension of the seven day period specified in s 723(3)(b): Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 at [26] - [29] ; Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]; Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at [20]-[21]; In the Matter of Geopacific Resources NL (2007) 25 ACLC 226 [16].
Case: Re Wave Capital Ltd (2003) 47 ACSR 418
Outcome: cited
Section 723 of the Act does not impose an obligation to lodge a quotation application within seven days of the date of a prospectus. Strictly speaking, read with s 724, it simply attaches certain consequences to the failure to do so. Nevertheless, s 1322(4)(d) has been construed as authorising an extension of the seven day period specified in s 723(3)(b): Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 at [26] - [29] ; Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]; Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at [20]-[21]; In the Matter of Geopacific Resources NL (2007) 25 ACLC 226 [16].
Case: Re Tony Barlow Australia Ltd (2005) 53 ACSR 1
Outcome: cited
Section 723 of the Act does not impose an obligation to lodge a quotation application within seven days of the date of a prospectus. Strictly speaking, read with s 724, it simply attaches certain consequences to the failure to do so. Nevertheless, s 1322(4)(d) has been construed as authorising an extension of the seven day period specified in s 723(3)(b): Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 at [26] - [29] ; Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]; Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at [20]-[21]; In the Matter of Geopacific Resources NL (2007) 25 ACLC 226 [16].
Case: In the Matter of Geopacific Resources NL (2007) 25 ACLC 226
Outcome: cited
Section 723 of the Act does not impose an obligation to lodge a quotation application within seven days of the date of a prospectus. Strictly speaking, read with s 724, it simply attaches certain consequences to the failure to do so. Nevertheless, s 1322(4)(d) has been construed as authorising an extension of the seven day period specified in s 723(3)(b): Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 at [26] - [29] ; Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]; Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at [20]-[21]; In the Matter of Geopacific Resources NL (2007) 25 ACLC 226 [16].
Case: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: cited
This is not, strictly speaking, a case of recalling a judgment. No final orders have as yet been pronounced, let alone entered, on Mr Pantzer's cross-claim. The case is thus distinguishable from Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 where the High Court had pronounced orders although they had not been formally entered. 7 Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.
Case: Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282
Outcome: considered
Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.
Case: Wenkart v Pantzer [2008] FCA 478
Outcome: considered
I have twice before published reasons for judgment in this matter; Wenkart v Pantzer [2007] FCA 1589 published on 16 October 2007 and Wenkart v Pantzer [2008] FCA 478 published on 11 April 2008. These reasons for judgment should be read together with my earlier reasons for judgment. 2 The history and subject matter of this proceeding is summarised in Wenkart v Pantzer [2007] FCA 1589 at [2] - [35] . As I noted in Wenkart v Pantzer [2008] FCA 478 at [1] - [8] , no agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment of 16 October 2007. Indeed, after hearing further from the parties, I accepted that I had not dealt with all outstanding issues between the parties. Those outstanding issues were dealt with in Wenkart v Pantzer [2008] FCA 478. When publishing those reasons for judgment I stood the proceeding over to a date to be fixed for the purpose of the making of orders giving effect to the reasons, including orders as to costs.
Case: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506
Outcome: applied
In my view, the authorities support the proposition that, in considering whether removal is reasonably practicable, physical considerations, such as the health of the person to be removed are relevant. So much appears from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [52] ( NATB ), Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [7] and albeit in perhaps quite circumscribed circumstances in the judgment of WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 at [86] . Of course, I do not take into account any consequences which may be inflicted upon the applicant upon his return to Turkey in the light of the decision which has been made about his protection visa application. To do so would fly in the face of NATB and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146. That itself introduces a somewhat difficult perspective in the present matter because, unlike other cases in which the health of the person being removed has been considered, the damage to the health of this applicant by the process of removal is related to his fears of what may happen to him if he were to return to Turkey. Such matters are more appropriately considered in final determination of the claim.
Case: Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181
Outcome: applied
In my view, the authorities support the proposition that, in considering whether removal is reasonably practicable, physical considerations, such as the health of the person to be removed are relevant. So much appears from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [52] ( NATB ), Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [7] and albeit in perhaps quite circumscribed circumstances in the judgment of WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 at [86] . Of course, I do not take into account any consequences which may be inflicted upon the applicant upon his return to Turkey in the light of the decision which has been made about his protection visa application. To do so would fly in the face of NATB and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146. That itself introduces a somewhat difficult perspective in the present matter because, unlike other cases in which the health of the person being removed has been considered, the damage to the health of this applicant by the process of removal is related to his fears of what may happen to him if he were to return to Turkey. Such matters are more appropriately considered in final determination of the claim.
Case: WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332
Outcome: considered
In my view, the authorities support the proposition that, in considering whether removal is reasonably practicable, physical considerations, such as the health of the person to be removed are relevant. So much appears from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [52] ( NATB ), Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [7] and albeit in perhaps quite circumscribed circumstances in the judgment of WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 at [86] . Of course, I do not take into account any consequences which may be inflicted upon the applicant upon his return to Turkey in the light of the decision which has been made about his protection visa application. To do so would fly in the face of NATB and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146. That itself introduces a somewhat difficult perspective in the present matter because, unlike other cases in which the health of the person being removed has been considered, the damage to the health of this applicant by the process of removal is related to his fears of what may happen to him if he were to return to Turkey. Such matters are more appropriately considered in final determination of the claim.
Case: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146
Outcome: cited
In my view, the authorities support the proposition that, in considering whether removal is reasonably practicable, physical considerations, such as the health of the person to be removed are relevant. So much appears from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [52] ( NATB ), Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [7] and albeit in perhaps quite circumscribed circumstances in the judgment of WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 at [86] . Of course, I do not take into account any consequences which may be inflicted upon the applicant upon his return to Turkey in the light of the decision which has been made about his protection visa application. To do so would fly in the face of NATB and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146. That itself introduces a somewhat difficult perspective in the present matter because, unlike other cases in which the health of the person being removed has been considered, the damage to the health of this applicant by the process of removal is related to his fears of what may happen to him if he were to return to Turkey. Such matters are more appropriately considered in final determination of the claim.
Case: Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583
Outcome: related
unjustified threats Claim will turn on the resolution of the other issues referred to in [6] and [7] above. That Claim was adjourned on 21 October 2008 because Mr Ogilvie, the principal witness to be called by Flameglow in support of that Claim, was ill and could not attend Court when the hearing of the other liability issues took place. The orders made on that occasion and the reasons for them are to be found in Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583. In addition, Flameglow did not participate to any real extent in the hearing before me. Its participation was confined to seeking to have its unjustified threats claim adjourned and to seeking to read an affidavit sworn by Mr Ogilvie, which I rejected. The application for the Patent was filed on 9 February 1990. At that time, the provisions of the Patents Act 1952 (Cth) ( the 1952 Act ) were in force. The Patent was granted on 20 July 1992.
Case: Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 ; (2008) 76 IPR 618
Outcome: applied
his text Patents for Inventions (5 th ed, Stevens, 1983) Blanco White said (at 4-102) (p 53): The test for lack of novelty is essentially the same as the test for infringement; that is to say, a prior use will invalidate a claim ... if it was such that it would infringe that claim if carried out after the grant of the patent concerned; while a prior disclosure will invalidate if it contains a clear description of, or clear instructions to do or make, something that would infringe if carried out after grant. This formulation has been applied in Australia (see Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 ; (2008) 76 IPR 618 at [157] (p 657) (per Lindgren J)). In assessing novelty, each alleged anticipation must be considered separately. Each alleged anticipation must disclose each and every one of the essential integers of a claim or claims under consideration.
Case: Bristol-Myers Squibb Co v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524
Outcome: applied
Bristol-Myers Squibb Co v FH Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 , Black CJ and Lehane J, in a joint judgment, after reviewing several relevant authorities at [64] [66] (pp 547 548), at [67] (pp 548 549) said: What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it.
Case: General Tire &amp; Rubber Co v Firestone Tyre &amp; Rubber Co Ltd (1971) 1A IPR 121, [1972] RPC 457
Outcome: applied
United Kingdom Court of Appeal in General Tire &amp; Rubber Co v Firestone Tyre &amp; Rubber Co Ltd (1971) 1A IPR 121, [1972] RPC 457 at 485 486 held that, if the prior inventor's publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee's claim if carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty. In that sense, it will have been anticipated. It is a question of whether or not the prior inventor's publication would render the later effort an infringement of the patentee's claim, on the assumption that the patentee's patent is valid. The Court of Appeal held ([1972] RPC at 486): If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not do so, the patentee's claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee's claim the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented: Flour Oxidising Co Ltd v Carr &amp; Co Ltd ((1908) 25 RPC 428 at 457, line 34, approved in BTH Co Ltd v Metropolitan Vickers Electrical Co Ltd (1928) 45 RPC 1 at 24, line 1). A signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
Case: ICI Chemicals &amp; Polymers Ltd v The Lubrizol Corporation Inc (2000) 106 FCR 214
Outcome: applied
propositions were confirmed by the Full Court in ICI Chemicals &amp; Polymers Ltd v The Lubrizol Corporation Inc (2000) 106 FCR 214 at [22] [23] (p 224), where the Court said: Applicable statutory regime The patent was granted under the Patents Act 1952 (Cth) (the 1952 Act). The 1952 Act has been repealed and the legislation now in force is the Patents Act 1990 (Cth) (the 1990 Act). Section 233 of the 1990 Act provides: "(1) Subject to this Chapter and the Regulations, this Act applies in relation to a standard patent or a petty patent granted under the 1952 Act as if the patent had been granted under this Act. ... (4) Objection cannot be taken to a patent mentioned in subsection (1), and such a patent is not invalid, so far as the invention is claimed in any claim, on any ground that would not have been available against the patent under the 1952 Act." It follows that the patent can only be revoked under the 1990 Act, and only on a ground of invalidity which is provided by that Act and would also have been available under the 1952 Act. And where the ground of invalidity under the 1952 Act is narrower than the corresponding ground under the 1990 Act, the patentee has the benefit of the narrower ground. That follows from the decision of the Full Court in NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd [1993] FCA 404 ; (1993) 44 FCR 239 at 253-254. Section 234(2) and s 234(5) are also relevant to the cross-claimants' claims that the Patent is invalid and should be revoked. These statements were expressly approved by the Full Court in ICI Chemicals &amp; Polymers Ltd 106 FCR 214 at [51] (p 230).
Case: Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274
Outcome: applied
observations made by his Honour were cited with approval by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 at [69] (pp 300 301). After the description of the preferred embodiments set out in the Patent, there is a description of an embodiment of the invention by reference to accompanying schematic drawings. This description is to be found between line 5 on p 4 and line 20 on p 9 of the Patent. Eight drawings are depicted in the schematic drawings forming part of the Patent. The Claims The Patent contains 20 Claims which define the invention. These are found on pp 10 12 of the Patent. There are two independent Claims (Claims 1 and 15). As is usually the case, each of the independent Claims is followed by several dependent Claims which become progressively narrower as additional features or limitations are added to the invention. Fair basis involves a comparison between the claims made in the Patent and what is disclosed in the specification in order to determine whether there is a "real and reasonably clear disclosure" of the invention claimed, or whether the claims "travel beyond" the invention described (see Lockwood Security Products Pty Ltd [2004] HCA 58 ; 217 CLR 274 at [57] (p 295), [69] (p 300) and [83] (p 306) (per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ)). I cannot see how, in the present case, the claims travel beyond the invention which has been described in the specification. Garth Living and Hotpoint seemed to be advancing this ground as a means of dealing with Bitech's construction of the Patent. Having regard to the construction which I have placed upon Claim 1, I do not think there is any room for a challenge based upon the absence of fair basis. This ground must be rejected. For the above reasons, Bitech's Application must be dismissed as must the Cross-Claims for a declaration of invalidity in respect of the Patent and for revocation of the Patent. I will make orders accordingly.