mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556
Outcome: cited
In the alternative, even if the information included information first given prior to the first Tribunal hearing, the conduct of the appellant was such that that information became information the appellant gave for the purpose of the application for review. I have reached that conclusion because of the submission put to the first Tribunal by the solicitors acting for the appellant. I have reached that conclusion without having to rely on the questions asked of the appellant at the second Tribunal hearing and his response to those questions. The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing. I have not attempted to express the distinction in precise terms and it seems to me to be a somewhat elusive one. Nevertheless, it is one that the authorities suggest must be drawn. It is said to be a distinction between information which the applicant for review puts forward as part of his or her case and adopts, on the one hand, and information elicited by questions from the Tribunal on the other. It is sufficient for me to refer to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556 and finally, VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 (' VWBF '). I would only add that, in relation to the relevant principles, I respectfully agree with the observation of Heerey J in VWBF as follows (at [48]): 'If this matter were free from authority, there would be much to be said for the view that the applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.'
Case: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302
Outcome: considered
In the alternative, even if the information included information first given prior to the first Tribunal hearing, the conduct of the appellant was such that that information became information the appellant gave for the purpose of the application for review. I have reached that conclusion because of the submission put to the first Tribunal by the solicitors acting for the appellant. I have reached that conclusion without having to rely on the questions asked of the appellant at the second Tribunal hearing and his response to those questions. The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing. I have not attempted to express the distinction in precise terms and it seems to me to be a somewhat elusive one. Nevertheless, it is one that the authorities suggest must be drawn. It is said to be a distinction between information which the applicant for review puts forward as part of his or her case and adopts, on the one hand, and information elicited by questions from the Tribunal on the other. It is sufficient for me to refer to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 ; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZCJY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 556 and finally, VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 (' VWBF '). I would only add that, in relation to the relevant principles, I respectfully agree with the observation of Heerey J in VWBF as follows (at [48]): 'If this matter were free from authority, there would be much to be said for the view that the applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered.'
Case: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: referred to
It will be apparent that in so approaching the matter, the wrong question was asked. The correct question was not whether the applicants should, as a matter of discretion, have a review of Registrar Hedge's order the correct question was what the outcome of that review should be. The orders made by me on 13 August 2008 have not been entered. It follows that there exists a power to recall those orders and reconsider the matter. This is because it is apparent that in dealing with the application I "erred in a material matter in [my] approach to the case": see Pittalis v Sherefettin [1986] QB 868 at 880 per Fox LJ; Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 302 per Mason CJ.
Case: Harris v Caladine [1991] HCA 9 ; (1990) 172 CLR 84
Outcome: followed
The correctness of that statement, albeit in a slightly different context, has been accepted by a Full Court of this Court on at least two occasions: see Martin v Commonwealth Bank of Australia (2005) 217 ALR 634 at 635-636 [6]-[7] per North, Mansfield and Katz JJ, and Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [24] per Kiefel, Weinberg and Stone JJ. It seems to me that that reading is also consistent with the reasoning in Harris v Caladine [1991] HCA 9 ; (1990) 172 CLR 84 at 95 per Mason CJ and Deane J, 124-125 per Dawson J, 151 per Gaudron J and 164 per McHugh J. The consequence is that whilst s 35A(6) appears to confer a discretionary power on the Court to order a review by use of the words "may", in fact, the applicants are entitled, by right, to a review. Thus, "may" in s 35A(6) means "must".
Case: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Outcome: cited
The correctness of that statement, albeit in a slightly different context, has been accepted by a Full Court of this Court on at least two occasions: see Martin v Commonwealth Bank of Australia (2005) 217 ALR 634 at 635-636 [6]-[7] per North, Mansfield and Katz JJ, and Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [24] per Kiefel, Weinberg and Stone JJ. It seems to me that that reading is also consistent with the reasoning in Harris v Caladine [1991] HCA 9 ; (1990) 172 CLR 84 at 95 per Mason CJ and Deane J, 124-125 per Dawson J, 151 per Gaudron J and 164 per McHugh J. The consequence is that whilst s 35A(6) appears to confer a discretionary power on the Court to order a review by use of the words "may", in fact, the applicants are entitled, by right, to a review. Thus, "may" in s 35A(6) means "must".
Case: Mazukov v University of Tasmania [2004] FCAFC 159
Outcome: cited
The correctness of that statement, albeit in a slightly different context, has been accepted by a Full Court of this Court on at least two occasions: see Martin v Commonwealth Bank of Australia (2005) 217 ALR 634 at 635-636 [6]-[7] per North, Mansfield and Katz JJ, and Mazukov v University of Tasmania [2004] FCAFC 159 at [22] - [24] per Kiefel, Weinberg and Stone JJ. It seems to me that that reading is also consistent with the reasoning in Harris v Caladine [1991] HCA 9 ; (1990) 172 CLR 84 at 95 per Mason CJ and Deane J, 124-125 per Dawson J, 151 per Gaudron J and 164 per McHugh J. The consequence is that whilst s 35A(6) appears to confer a discretionary power on the Court to order a review by use of the words "may", in fact, the applicants are entitled, by right, to a review. Thus, "may" in s 35A(6) means "must".
Case: Jageev Pty Ltd v Deane (1997) 72 FCR 398
Outcome: followed
In Jageev Pty Ltd v Deane (1997) 72 FCR 398 at 399, Davies J considered the nature of the power to review conferred by s 35A(6): Although many matters are sent for hearing in the first instance before a registrar, it is beyond the jurisdiction of this Court to arrange affairs so that the decision of the registrar is equivalent to a decision of a judge. That is a constitutional problem which of course does not face State courts. The result is that ... the Court must provide a rehearing on the merits of any matter which comes before a registrar and with which one of the parties to the proceedings before the registrar is dissatisfied.
Case: Pittalis v Sherefettin [1986] QB 868
Outcome: referred to
It will be apparent that in so approaching the matter, the wrong question was asked. The correct question was not whether the applicants should, as a matter of discretion, have a review of Registrar Hedge's order the correct question was what the outcome of that review should be. The orders made by me on 13 August 2008 have not been entered. It follows that there exists a power to recall those orders and reconsider the matter. This is because it is apparent that in dealing with the application I "erred in a material matter in [my] approach to the case": see Pittalis v Sherefettin [1986] QB 868 at 880 per Fox LJ; Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 302 per Mason CJ.
Case: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241
Outcome: referred to
There was no dispute as to the principles that apply to the construction of a collective agreement such as the AMOU Agreement. Both parties referred to the observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, at 184, quoted with approval by Kirby and Callinan JJ in separate judgments in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 , at 270-271 [96], at 282-283 [129]-[130]: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.'
Case: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Outcome: referred to
The resolution of the question of construction posed by the competing submissions is not easy. The many provisions referred to in argument are not free from the ' apparent inconsistencies ', if not ' illogicality ', that often characterise collective agreements negotiated between employers and employees' organisations: cf City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, at 440 [57], per French J. The difficulties of construction are compounded by the fact that the AMOU Agreement does not specifically (let alone unambiguously) address whether or not SFC needs the prior agreement of AMOU to introduce crew based rosters. 60 Of course there is nothing unusual in an agreement, even one drafted with the benefit of considered legal advice, not specifically addressing an issue that turns out to be critical to the resolution of a dispute between the parties to the agreement. In this case, however, the omission of any explicit reference to SFC's ability (or inability) to introduce unilaterally crew based rosters is surprising. After all, the AMOU Agreement 2004 extolled the virtues of ' Vessel Teams ' (an expression similar in meaning to ' crew based rosters ') (cl 25.2). Moreover, I infer that SFC has been well aware for a considerable period of the safety benefits it says will flow from crew based rosters. Yet the AMOU Agreement apparently leaves the issue to be determined on the basis of inferences to be drawn from provisions not specifically concerned with the introduction of crew based rosters. 61 In order to evaluate the competing arguments it is necessary to consider the terms of the AMOU Agreement in the light of the surrounding circumstances and in the context of the Agreement as a whole. There are a number of matters that require careful consideration. 62 First , there is no dispute that under the AMOU Agreement 2004, SFC could have unilaterally introduced a crew based roster system in place of the system it had inherited. As I have noted, the virtues of ' Vessel Teams ' were expressly identified in cl 25.2 of the AMOU Agreement 2004, which also recorded that ' [SFC] and Officers [were] committed to working towards having self-managed work groups '. Apart from a notice provision, the only apparent qualifications to SFC's power as an employer unilaterally to introduce crew based rosters were the requirements that the changes: &#8226; be for ' good and sufficient reason ' (cl 44.1); and &#8226; not be inconsistent with any other provisions of the AMOU Agreement 2004 (none of which appear to have imposed restrictions on the introduction of crew based rosters as such). 63 Secondly , despite apparently having the power to introduce crew based rosters during the currency of the AMOU Agreement 2004, SFC did not do so. The reasons for SFC's unwillingness or inability to introduce the rosters were not revealed by the evidence.
Case: City of Wanneroo v Holmes (1989) 30 IR 362
Outcome: cited
As this passage implies, the language used in a collective agreement must be understood in context. The context includes the entire document of which the relevant provisions form part but it extends to the industrial context which gave rise to the agreement: Amcor v CFMEU, at 246 [2], per Gleeson CJ and McHugh J; Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 , at 518, per Burchett J (with whom Drummond J agreed). The words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities. Nonetheless, the words should make sense according to the conventions of the English language: City of Wanneroo v Holmes (1989) 30 IR 362, at 378-379, 380, per French J.
Case: Kucks v CSR Ltd (1996) 66 IR 182
Outcome: followed
There was no dispute as to the principles that apply to the construction of a collective agreement such as the AMOU Agreement. Both parties referred to the observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182, at 184, quoted with approval by Kirby and Callinan JJ in separate judgments in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 , at 270-271 [96], at 282-283 [129]-[130]: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.'
Case: Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511
Outcome: cited
As this passage implies, the language used in a collective agreement must be understood in context. The context includes the entire document of which the relevant provisions form part but it extends to the industrial context which gave rise to the agreement: Amcor v CFMEU, at 246 [2], per Gleeson CJ and McHugh J; Short v F W Hercus Pty Ltd [1993] FCA 51 ; (1993) 40 FCR 511 , at 518, per Burchett J (with whom Drummond J agreed). The words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities. Nonetheless, the words should make sense according to the conventions of the English language: City of Wanneroo v Holmes (1989) 30 IR 362, at 378-379, 380, per French J.
Case: Sydney Ferries Corporation v Australian Maritime Officers Union [2008] FCA 817
Outcome: referred to
The first respondent (' AMOU ') represents the Masters and Inner Harbour Engineers (collectively ' Maritime Officers ') employed by SFC. AMOU is an organisation registered under the Workplace Relations Act 1996 (Cth) (' WR Act ') and has corporate status conferred by the WR Act. 4 The second-named second respondent (' SUA ') represents the General Purpose Hands (' GPHs ') employed by SFC. The SUA is an organisation registered under the Industrial Relations Act 1996 (NSW) (' NSW Act ') and is not registered under the WR Act. (The first-named second respondent (' MUA ') has been represented in the proceedings by the same solicitors and counsel as SUA and there is no need to refer further to it separately.) 5 The third respondent (' AIMPE '), an organisation registered under the WR Act, represents the Outer Harbour Engineers (' OHEs ') employed by SFC. 16 On the following day, 29 May 2008, SFC served an application on the respondents by which it sought orders from the Australian Industrial Relations Commission (' AIRC ') pursuant to s 496 of the WR Act , requiring actual or threatened industrial action to stop or not take place. Before that application could be heard by the AIRC, I granted AMOU and SUA what is commonly known as an anti-suit injunction. This restrained SFC, pending the determination of proceedings in this Court, from taking further action in the AIRC to obtain orders pursuant to s 496 of the WR Act : Sydney Ferries Corporation v Australian Maritime Officers Union [2008] FCA 817. However, I set an early date of 13 June 2008 for the hearing of SFC's claims for final relief in this Court. 17 SFC subsequently filed an amended application in this Court which eliminated its claims for injunctions and penalties against the respondents. The amended application confined SFC's claim to declaratory relief in relation to the proper construction of the three Enterprise Agreements. 18 At the commencement of the hearing on 13 June 2008 the parties handed up consent short minutes of order resolving the proceedings between SFC and SUA and between SFC and AIMPE. After being satisfied that I had power to do so, I duly made declarations in accordance with the short minutes of order.
Case: Atlantis Corporation Pty Ltd v Schindler [1997] FCA 455
Outcome: cited
undertaking as to damages in support of a stay is required when it is necessary to protect against a perceived risk of loss ( Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [8]; Atlantis Corporation Pty Ltd v Schindler [1997] FCA 455). Pfizer submits that the matters raised by the Commonwealth, such as a generic manufacturer who relies on the Patents Register and declines to take steps to be ready to enter the market in April 2007, are speculative and not sufficient reason to require the undertaking.
Case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495
Outcome: cited
undertaking as to damages in support of a stay is required when it is necessary to protect against a perceived risk of loss ( Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [8]; Atlantis Corporation Pty Ltd v Schindler [1997] FCA 455). Pfizer submits that the matters raised by the Commonwealth, such as a generic manufacturer who relies on the Patents Register and declines to take steps to be ready to enter the market in April 2007, are speculative and not sufficient reason to require the undertaking.
Case: H Lundbeck A/S v Commissioner of Patents [2006] FCA 163 ; (2006) 150 FCR 269
Outcome: applied
validity of reg 10.7(7) was considered by Lindgren J in H Lundbeck A/S v Commissioner of Patents [2006] FCA 163 ; (2006) 150 FCR 269. His Honour held that reg 10.7(7) is not invalid. Pfizer makes a ' formal submission ' that reg 10.7(7) is invalid but limits its submissions to that contention. Pfizer relies upon the submissions presented by the applicant in Lundbeck as reflected in his Honour's reasons but does not repeat them or otherwise explain why reg 10.7(7) is invalid. It is accepted by all parties that, for the purposes of this appeal, I will follow the Lundbeck decision that reg 10.7(7) is valid, prior to any determination to the contrary by the Full Court. Section 70(3) provides that, as a condition for extension, goods containing at least one of the claimed pharmaceutical substances must be included in the Australian Register of Therapeutic Goods ('the ARTG') and the period beginning on the date of the patent and ending on ' the first regulatory approval date ' for the substance must be at least 5 years. Section 77 provides for the calculation of the term of extension by reference to the period beginning on the date of the Patent and ending on the earliest ' first regulatory approval date ' as defined in s 70, reduced by 5 years.
Case: Pfizer Corp v Commissioner of Patents (2006) 67 IPR 646
Outcome: cited
Pharmaceuticals Pty Limited is an Australian pharmaceutical company with a commercial interest in the expiry date of at least one of the Pfizer patents. Spirit was joined as a respondent to this proceeding on 1 March 2006 ( Pfizer Corp v Commissioner of Patents (2006) 67 IPR 646). Spirit seeks to adduce evidence of Dr Walters, a person experienced in matters relating to the ARTG, to establish the regulatory requirements of Listed Goods and the extent to which a patentee with an export only listing can exploit a patent. The evidence is said to answer Pfizer's contention that there is no requirement to lodge extensive data in support of an application for inclusion in the ARTG as Listed Goods, which is a requirement for goods to be Registered Goods. Spirit also wishes to respond to any suggestion that an export only listing does not allow exploitation of the patent which compensates for regulatory and product development delays. Such evidence was tendered by Pfizer before the Commissioner and was referred to in the decision. Pfizer now contends that the issue is one of statutory construction to which this evidence is not relevant. Pfizer submits that all parties now accept that there can be different inclusions in the ARTG. Pfizer accepts that it is necessary to provide data in support of an application for Listed Goods and that an export only listing enables the patentee to exploit the invention, albeit on a less than "fully effective" basis. The point that Pfizer wishes to make is that the provision of data for Registered Goods is more onerous and extensive. This itself is said to result in regulatory delay before there can be marketing in Australia and full exploitation of the patent.
Case: Re Pfizer Corporation (2005) 67 IPR 201
Outcome: affirmed
Commissioner of Patents, by her delegate the Deputy Commissioner of Patents, decided that an amendment should be made to the Register of Patents ('the Patents Register') to correct the extension of term of four patents ('the Pfizer patents') in the name of the applicants (collectively 'Pfizer') ( Re Pfizer Corporation (2005) 67 IPR 201). This appeal by Pfizer from that decision raises two issues, which arise with respect to all four patents: &#8226; The validity of reg 10.7(7) of the Patents Regulations 1991 (Cth) ('the Patents Regulations '). &#8226; The date from which an extension of term of a pharmaceutical patent is calculated.