mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Outcome: cited
Even if "the event" is easily identified, it will not always be just that costs follow the event: see Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. The notion of costs following the event is not straightforward in the present case. 24 Generally speaking, in the Revocation Proceeding, Lundbeck succeeded in defending the Patent against the attack by Alphapharm. Claim 5 was held invalid, but overall this did not assume great importance. Lundbeck succeeded on its cross-claim for infringement but only to a minor extent, and otherwise Alphapharm succeeded on that cross-claim. 25 Through the Arrow Proceeding, Arrow joined cause with Alphapharm in the attack on the Patent. There was no claim that Arrow had infringed the Patent.
Case: Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738
Outcome: cited
As the express words of s 477(2B) make clear and consistent with the policy underlying the section, a liquidator should seek the Court's approval before entering into a long term agreement: Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738 at 741, [9]. In certain circumstances, retrospective approval may be given by the court: Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102 and Empire (Aust) Nominees at 741, [10] and the authorities cited.
Case: Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102
Outcome: cited
As the express words of s 477(2B) make clear and consistent with the policy underlying the section, a liquidator should seek the Court's approval before entering into a long term agreement: Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738 at 741, [9]. In certain circumstances, retrospective approval may be given by the court: Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102 and Empire (Aust) Nominees at 741, [10] and the authorities cited.
Case: Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862
Outcome: cited
On 12 February 1998, Seeley commenced proceedings in the Federal Court against Newtronics seeking damages arising from the supply of faulty products by Newtronics to Seeley. On 21 December 2001, the Honourable Justice O'Loughlin ordered Newtronics to pay Seeley $8.9 million together with interest and costs: Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862. Interest was later fixed at $5 million. 5 On 8 January 2002, Atco served a demand upon Newtronics pursuant to a mortgage debenture and appointed receivers to Newtronics. On 26 February 2002, Mr Stewart was appointed the liquidator of Newtronics by an order of this Court on the application of Seeley. At the time of his appointment, Newtronics had no tangible assets and its creditors included Atco (in the sum of approximately $20 million but which was apparently secured), Seeley (in the sum of $19 to $20 million and which was unsecured) and other unsecured creditors (for approximately $60,000). Newtronics' assets position and principal creditors have not changed. Seeley is Newtronics' judgement creditor and remains Newtronics' largest unsecured creditor. 6 From the time of his appointment, Mr Stewart retained legal advisers to act on his behalf in relation to the liquidation of Newtronics. Initially, Mr Stewart retained Mr Rydon of Thomson Playford. That retainer was terminated on or about 22 October 2002. On the same day, Mr Stewart retained Mr Jonathon Kramersh, then a partner of Holding Redlich and from 1 February 2003, a partner of Corrs Chambers Westgarth.
Case: Hill v Evans (1862) 31 LJ Ch (NS) 457
Outcome: referred to
principles to be applied in determining whether an invention was novel are comparatively settled. Courts both in Australia and the United Kingdom continue to view the principles as rooted in the decision of Lord Westbury in Hill v Evans (1862) 31 LJ Ch (NS) 457, 1A IPR 1. That decision has recently been described by Lord Hoffman as a judgment of unquestionable authority: Smithkline Beecham plc's (paroxetine methanesulfonate) patent [2006] RPC 10. Hill v Evans concerned disclosure and a patent for the purification of gas. Lord Westbury described the disclosure required in an earlier publication necessary to destroy a later patent for want of novelty, as involving a statement such that a person of ordinary knowledge of the subject would at once perceive, understand and be able practically to apply the discovery without the necessity of making further experiments and gaining further information before the invention could be made useful. His Lordship continued by saying that if something remained to be ascertained which was necessary for the useful application of the discovery, that provided sufficient room for another valid patent.
Case: Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543
Outcome: referred to
the course of the argument, counsel for GenRx referred to the decision of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 119 CLR 618, the judgment of Stephen J in Firth Industries Ltd v Polyglas Engineering Pty Ltd [1975] HCA 25 ; (1975) 132 CLR 489 and observations in the fourth edition (2002) of Meagher, Gummow and Lehane's: Equity: Doctrines and Remedies at 782 (but, compare the commentary at 787) that "the old rule still obtains that only in the rarest of cases can a plaintiff obtain an interlocutory injunction against the infringement of the patent if the validity of the patent is put in issue". However I think it is clear, particularly having regard to the analysis of Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543, that Courts are now considerably less reticent about granting interlocutory injunctive relief in infringement proceedings, than may have been the case historically. In my opinion, this is a case warranting the grant of interlocutory injunctive relief. The balance of convenience favours it. Since at least November 2004, when the solicitors acting for GenRx in these proceedings sought in writing (by reference to the same file number that the firm is using for this matter) details of Merck's patent from IP Australia, GenRx has known of Merck's rights under the patent in relation to AMT. A clear inference is available than since then, GenRx has set about making the commercial arrangements to import into Australia for sale and distribution drugs containing an active ingredient protected by Merck's patent in Australia. It has done so for the admitted purpose of gaining the commercial advantage of putting the second generic drug into the market. Those arrangements have included sponsoring the registration of the drugs on the Australian Register of Therapeutic Goods and sponsoring the inclusion of one of them in the Pharmaceutical Benefits Scheme. The other branded drugs to be imported have been or are likely to be listed in that scheme on the application of other sponsors. There can be little doubt that GenRx has engaged in this conduct deliberately and with the knowledge that Merck's patent would be infringed unless it was able successfully to impeach its validity. It could have done so by revocation proceedings. It has not and now calls in aid the consequences of not being able to give effect to the arrangements now in place. That includes commercial loss to it and others and potentially, loss of reputation. For my part I give little weight to these complaints or concerns. As just discussed, GenRx has placed itself in this position quite deliberately and knowingly. To use the language of some of the authorities, its "eyes were wide open".
Case: Aboriginal Legal Rights Movement Inc v South Australia and Another (No 1) (1995) 64 SASR 551
Outcome: cited
Accordingly it is necessary to identify the 'act' or conduct relied upon. Secondly it is necessary to identify a 'distinction, exclusion, restriction or preference' and thirdly to establish that such distinction, exclusion, restriction or preference was 'based upon' race. To prove the last mentioned matter it is essential to determine a causal connection between race and the impugned act: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No 1) (1995) 64 SASR 551 at 553, where Doyle CJ, with whom Bollen J agreed, said: 'The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.'
Case: Baird and Others v Queensland (No 1) (2005) 224 ALR 541
Outcome: referred to
Whether the discrimination is 'based upon' racial distinction has been held to mean whether the discrimination is ' by reference to ' a person's race: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8 (affirmed by the Full Court: see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Findings to the same effect have been made in other courts: see Baird and Others v Queensland (No 1) (2005) 224 ALR 541; Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341.
Case: Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341
Outcome: referred to
Whether the discrimination is 'based upon' racial distinction has been held to mean whether the discrimination is ' by reference to ' a person's race: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8 (affirmed by the Full Court: see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Findings to the same effect have been made in other courts: see Baird and Others v Queensland (No 1) (2005) 224 ALR 541; Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341.
Case: Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240
Outcome: cited
Moore J in Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240 at [163] explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.' 88 Since the President could not have been in a position to prevent any alleged unlawful conduct from occurring, it is apparent that s 105 can have no application in relation to him in resect of his decision to terminate the complaints of Ms Obieta for the reason that they were lacking in substance. Further, the President is not a party to the present proceedings and was not named as a respondent to Ms Obieta's complaint terminated on 3 March 2006. As such a claim made by Ms Obieta against the President cannot be maintained in these proceedings. 89 For the above reasons the Court will order that the proceedings be dismissed and that Ms Obieta pay the costs of the Commission. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 7 February 2007 Counsel for the Applicant The Applicant appeared in person Counsel for the Respondent: Kate Eastman Solicitor for the Respondent: Human Rights and Equal Opportunity Commission Date of Hearing: 27 October and 3 November 2006 Date of Judgment: 7 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/85.html
Case: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8
Outcome: cited
Whether the discrimination is 'based upon' racial distinction has been held to mean whether the discrimination is ' by reference to ' a person's race: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8 (affirmed by the Full Court: see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Findings to the same effect have been made in other courts: see Baird and Others v Queensland (No 1) (2005) 224 ALR 541; Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341.
Case: Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: followed
An infringement of an Article in an International Convention referred to in Schedules to the RDA, SDA and HREOC Act does not give rise to a breach of the Act: see Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273. Accordingly the Court will not refer to the Articles of the International Conventions which were allegedly breached since no enforceable rights are created by them. Similarly, no cause of action arises in respect of alleged breaches of sections which are purely definitional or explanatory relied upon by Ms Obieta. Accordingly the Court will not refer to such sections. 36 Ms Obieta claims that Ms Aylett and Ms Toohey rejected her complaint against Ms Fogarty without reviewing and assessing her submission dated 1 September 2005. As such Ms Obieta claims that Ms Aylett and Ms Toohey denied her 'natural justice' in handling her complaint, violated her human right to be heard on an equal footing with other parties or Australian respondents, and that she was treated unfairly. She alleges a breach of s 9 and s 10 of the RDA. 37 Ms Obieta submits that the letter of the Commission to her dated 17 January 2006, which addresses her concerns relating to Ms Fogarty, refers to the original complaint relating to Ms Fogarty and submission of 20 July 2005 but does not refer to her letter of 1 September 2005. She submits this further demonstrates that the Commission failed to take into account such letter.
Case: SCAS v Minister for Immigration ad Multicultural and Indigenous Affairs [2002] FCAFC 397
Outcome: cited
The Full Court observed in SCAS v Minister for Immigration ad Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] : 'Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker'. No evidence has been provided in support of Ms Obieta's allegation of bad faith and the Court is not satisfied that the President handled Ms Obieta's complaint other than in a genuine and appropriate manner. Additionally, no complaint has been accepted by the Commission concerning the President's conduct. 82 It follows that this Court has no jurisdiction under Part IIB of the HREOC Act and accordingly the Court upholds the submission that the complaint of race discrimination cannot be substantiated and must be dismissed. 83 Ms Obieta claims that the exercise of the President's powers under s 46PH of the HREOC Act included victimisation within the meaning of s 94 of the SDA; and conduct that ' causes, instructs, induces, aids or permits' the respondents in the TAFE proceedings to discriminate against Ms Obieta on the ground of sex within the meaning of s 105 of the SDA.
Case: Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177
Outcome: cited
The Commission refers to the decision of Kenny J in Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1177 at [166] which recently considered the general principles for determining whether an action may be done other than in good faith. Kenny J emphasised that an allegation of bad faith is a ' serious allegation involving the imputation of moral turpitude '. At [168], Her Honour said: '...The focus of an inquiry concerning an allegation of bad faith is the state of mind of the decision-maker. The Court is not simply evaluating the wisdom of an impugned decision... "mere error or irrationality does not of itself demonstrate lack of good faith...[b]ad faith is not to be found simply because of poor decision-making": SBBS at 756 [45] . Rather the circumstances must show dishonesty (or capriciousness) on the part of the decision-maker... Something is done in "good faith" when done honestly. Something is done in "bad faith" when done dishonestly.' 57 The Commission submits that Ms Obieta's application to the Court under s 46PO of the HREOC Act constitutes 'an action or proceeding'; that all of the alleged acts were done in the performance of functions conferred on the Commission by the HREOC Act in relation to accepting, investigating and terminating complaints; that Ms Obieta seeks damages with respect to the alleged acts of discrimination; that there is no evidence to show that the actions of the Commission, the President or the officers were anything other than honest; and that Ms Obieta has adduced no evidence to demonstrate bad faith on the part of an employee of the Commission or the President. 58 In cross-examination Ms Obieta said that she relied on the terms of the letter dated 3 March 2006 from the President of the Commission advising her that the complaints had been terminated, as evidence of bad faith.
Case: Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47
Outcome: referred to
Whether the discrimination is 'based upon' racial distinction has been held to mean whether the discrimination is ' by reference to ' a person's race: see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8 (affirmed by the Full Court: see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Findings to the same effect have been made in other courts: see Baird and Others v Queensland (No 1) (2005) 224 ALR 541; Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341.
Case: Federal Commissioner of Taxation v Patcorp Investments Ltd (1973) 140 CLR 247
Outcome: referred to
The taxpayer submitted that the shares were issued when Nominees and Mr Handbury "were entitled as against the company to be registered", citing Federal Commissioner of Taxation v Patcorp Investments Ltd (1973) 140 CLR 247 at 303. The taxpayer said that "[t]hat point was the point at which the allotment consideration was provided and the contract was executed on their part, that is, the point at which the debts owing by the company to them were set off against the debt owing by them to the company for the allotment moneys". According to the taxpayer, the consideration was the setting off of the allocation moneys owed by Nominees and Mr Handbury against the debts owed by Magazines. In consequence, the "leaving time" for the purposes of Div 711 and s 104-520 coincided with the extinguishment of the liabilities to Nominees and Mr Handbury. 46 The taxpayer noted that step 4 in s 711-20 requires identification of "the liabilities that the leaving entity takes with it when it ceases to be a subsidiary member". The taxpayer submitted that, at the point when Magazines ceased to be a subsidiary member of the consolidated group, it also ceased to be indebted to Nominees and Mr Handbury and, therefore, those debts were not "a liability of the leaving entity at the leaving time that can or must be identified in the entity's statement of financial position". In consequence, the taxpayer submitted that Magazines did not "take with it" any relevant liabilities on ceasing to be a subsidiary member, and that liabilities to Nominees and Mr Handbury extinguished at the leaving time were excluded from the sum deducted under step 4 from the allocable cost amount for the leaving entity, as calculated under s 711-20. 47 By excluding the extinguished debts from the step 4 deduction, the taxpayer argued that its net capital gain was reduced by $26,140,360. 74 Nominees and Mr Handbury did not become members of Magazines (that is, the holders of the shares in the company) until their names were entered in the share register of the company on 30 July 2004: see St Helens Farm 146 CLR at 427 per Aickin J; and Patcorp Investments 140 CLR at 293, 295-96 per Gibbs J and 303 per Jacobs J. See generally HAJ Ford, RP Austin and IM Ramsay, Ford's Principles of Corporations Law (Butterworths, Australia, 2000), vol 2, at [17.170]. When their names were entered in the register, the shares came into existence as separate items of property: see Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [20] ; St Helens Farm 146 CLR at 427 per Aickin J; also Commonwealth Homes and Investment 59 CLR at 461 per Dixon J. It follows that Nominees and Mr Handbury did not acquire any beneficial interest in shares in Magazines until 30 July 2004, at which point Magazines ceased to be a member of the consolidated group.
Case: Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492
Outcome: referred to
Additionally, citing Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492 at 510 and Anderson v Commissioner of Taxes (Vic) [1937] HCA 24 ; (1937) 57 CLR 233 at 243, the taxpayer submitted that, in the context of Pt 3 - 90 of the 1997 Act , "appeals to a legislative policy of matching 'appropriate economic outcomes' are of little assistance in interpreting the legislation", noting examples where the 1997 Act departed from "economic outcomes" and copies of press releases by the relevant government Ministers in relation to proposed amendments to reverse the legislative effect of tax provisions producing "unanticipated results".
Case: Anderson v Commissioner of Taxes (Vic) [1937] HCA 24 ; (1937) 57 CLR 233
Outcome: referred to
Additionally, citing Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492 at 510 and Anderson v Commissioner of Taxes (Vic) [1937] HCA 24 ; (1937) 57 CLR 233 at 243, the taxpayer submitted that, in the context of Pt 3 - 90 of the 1997 Act , "appeals to a legislative policy of matching 'appropriate economic outcomes' are of little assistance in interpreting the legislation", noting examples where the 1997 Act departed from "economic outcomes" and copies of press releases by the relevant government Ministers in relation to proposed amendments to reverse the legislative effect of tax provisions producing "unanticipated results".