case_text: 12 April 2006, Bongiorno J dismissed complaints by the various defendants in the Supreme Court proceedings that they had all been inappropriately joined in the one proceedings notwithstanding that there were two separate and quite distinct publications in respect of which there were distinct issues ( Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation [2006] VSC 138). He held that any defendant could apply again at or before the trial for appropriate relief to separate the issues as to the two publications. Bongiorno J said that he was satisfied that taking all the relevant circumstances into account it was convenient not only to the parties, but from the Court's own perspective, to permit the matter to proceed in its present form. He concluded that at that stage of the preparation of the matter there was no undue risk of unfairness to any party by permitting the issues arising from two publications to remain joined and that it could lead to considerable savings of time and cost of doing so. After Bongiorno J gave judgment, the defendants in the Supreme Court filed defences, each of which raised pleas of justification, although the issues that were to be justified were distinct as I shall explain. In the proceedings in this Court the Dairy complained that the letter written by Wholefoods (which was signed by Mr Kinnear on its behalf) made representations in trade or commerce in contravention of s 52 of the Trade Practices Act 1974 (Cth) that: • the labelling of milk and cream produced and sold by the Dairy was untruthful; • the truth or falsity of the labelling of the milk and cream produced and sold by the Dairy warranted official investigation by the Victorian Government's Consumer Protection Authority; • Wholefoods' servant or agent, Mr Kinnear, the signatory to the letter, was acting as a retailer and consumer of the Dairy's products in making his complaint to Consumer Affairs Victoria; • the account of events alleged in the document attached to the letter was true and correct (par 3). Each of those representations was alleged to be false. I raised during the course of argument that the last representation, as framed, was quite unclear in respect of what it claimed was misleading, deceptive or false and that it would be impossible for a judge trying the issue to know precisely what it was in the 'account of events alleged' which was in issue. Counsel for the Dairy has indicated that consideration will be given to an amendment to clarify the matters sought to be raised by that allegation. Justice Bongiorno ruled that each of those imputations was capable of being conveyed by the matter complained of and he refused to strike them out ( Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation [2006] VSC 138 at [29] , [33], [35] and [41]). In doing that he noted that the word 'questionable' in the last of those imputations was not so ambiguous as to render the pleading embarrassing even though it could mean both 'open to question, arguable' or alternatively 'dishonest, dubious, shady' ([2006] VSC 138 at [37]-[38]). No doubt, the precise sense in which that expression will be used when the matter comes to trial will require a degree of clarification: see Singleton v Ffrench (1986) 5 NSWLR 425 at 435E-F per McHugh JA. However, for present purposes, it suffices that on the current state of the pleadings in the Supreme Court, the truth or falsity of the Dairy's claim to have organic milk is squarely in issue. The article in the Weekly Times was said to convey the following meanings or imputations: • the Dairy, in holding out its product as organic milk, was an imposter; • the Dairy had misled consumers by posing as a producer of organic dairy products; • new laws were necessary to prevent the Dairy from falsely describing its product as an organic; • the Dairy had crossed the line delimiting acceptable conduct in relation to promoting its goods honestly; • the Dairy had damaged the credibility of the organic food industry; • it was necessary to pass new laws to protect consumers from the Dairy's conduct; • the Dairy had so conducted itself as to warrant investigation by Consumer Affairs Victoria (par 15). Mr Kinnear filed a defence in the Supreme Court which pleaded justification of the final three imputations said to have arisen from the broadcast. The particulars of justification set out in his defence asserted much of what is in the letter of 23 November 2004 to Consumer Affairs Victoria and annexures which are the subject matter of these proceedings. The Australian Broadcasting Corporation and its journalists pleaded a defence of justification, but the particulars which they gave were that Mr Kinnear had sent the letter of 23 November 2004 to Consumer Affairs Victoria and it had commenced an investigation as a result. The Weekly Times and its journalists pleaded that the final imputation pleaded against them was true, in that, the Dairy was the subject of investigation following receipt by Consumer Affairs Victoria of the letter 23 November 2004. There were differences of a substantial kind between the two matters complained of in the Supreme Court proceedings and the three defences filed (those of Mr Kinnear, the ABC and its journalists and the Herald & Weekly Times and its journalists). During the course of submissions in the Supreme Court proceedings before Bongiorno J on the joinder of the two matters complained of, the Dairy submitted: 'There seem likely to be at least common issues of fact (as to the Consumer Affairs investigation, at the very least). In this respect it is submitted that the claim almost certainly would or should satisfy [VSC] Rule 9.02(2)(i). There also seem likely to be common witnesses, [Mr] Kinnear at least.' The Dairy also submitted to Bongiorno J that there were likely to be common questions of fact, witnesses and that a separation into separate jury trials would involve incurring further costs or delay, with an unsatisfactory spectre of two actions in which trials could be conducted at different times or worse at the same time. It said that either way, the call upon the resources of the Court would be greater than the present combined action. It also said that the evidence of the Dairy's witnesses '... and witnesses such as [Mr] Kinnear, will inevitably take longer in the second of the two trials as there would be cross-examination about the evidence in the first trial'. Wholefoods submitted on the present motion that there will be common issues of fact with those raised in the Victorian proceedings. In essence, Wholefoods argued that the Dairy's claim in this Court is a contrivance and is a further claim in defamation, dressed up as a trade practices claim. Wholefoods also relied upon the failure of the Dairy to give proper particulars of the way in which it put its loss. At the hearing it was not known what the attitude of the other parties to the Supreme Court proceedings, other than Mr Kinnear, would be to the question as to, if the matter were cross vested to the Supreme Court, whether it could be heard together with or consolidated into the current Supreme Court proceedings. I directed that the parties make enquiries for the purposes of ascertaining that. Having regard to the fact that Bongiorno J appears, at this stage, to have considered that it was appropriate that the two separate claims for defamation proceed concurrently, and remain joined in the one action, it seemed to me that, given the materiality of Mr Kinnear as a witness and the centrality of his complaint to Consumer Affairs Victoria, which was written on Wholefoods' letterhead, it would be in the interests of the parties to these proceedings, and the Dairy and Mr Kinnear as parties to the Supreme Court proceedings, to have the issues raised here also considered together with the issues in the Supreme Court action. Most significantly I raised the risk of inconsistent findings as to the truth of the relevant imputations or representations, all of which arise out of, in substance, the question whether it was appropriate for the Dairy to represent its milk as organic. I raised with the parties that there was a clear risk of inconsistent findings of fact. That risk applied also to issues as to the credibility of Mr Kinnear and the Dairy's witnesses. The Dairy and Wholefoods filed further submissions in early October 2006 and Wholefoods also filed further evidence, to which I now refer. In late August 2006, the media defendants in the Supreme Court proceedings brought an application for third party discovery against the Director of Consumer Affairs Victoria. The Dairy supported this application. Its solicitor, Mr Ball, in an affidavit sworn on 6 September 2006, exhibited notices issued by the Director pursuant to s 106A of the Fair Trading Act 1999 (Vic) which had been served on the directors of the Dairy. These notices required them to substantiate a number of claims made in relation to the Dairy's products. Additionally, on 8 September 2006, the Dairy made submissions in support asserting that it was not an issue that the investigation by Consumer Affairs Victoria was initiated by the complaint made to it by Mr Kinnear. None of this was before me during the course of the hearing on 7 September 2006. On the other hand, if all proceedings brought by the Dairy based on Mr Kinnear's letter of 23 November 2004 were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings. That is an indication that there is a single matter or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 586 [141] per Gummow and Hayne JJ. Here, at the present time, Bongiorno J has held that there is, in substance, a single controversy between the parties to the first Supreme Court proceedings notwithstanding that there are two separate matters complained of published by apparently separate individuals with no common connexion other than the fact that the Dairy is the plaintiff against all those defendants. And the Dairy asserts that the second Supreme Court proceedings are also part of that one controversy.


case_outcome: cited

case_text: Alphapharm and Arrow accept that, upon the appropriate undertakings being given by Lundbeck, there should be a stay in relation to revocation of claim 5 of the Patent since there is some doubt as to the Court's power to order re-instatement: see Atlantis Corporation Pty Ltd v Schindler , unreported, Emmett J, 27 May 1997; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 at [4]; Imperial Chemical Industries plc v E I Dupont De Nemours & Co (2002) 58 IPR 227 at [11]. I agree that there should be a stay in relation to claim 5. I note that in Doric v Lockwood above, Hely J observed (at [4]) that it is usual for an order for revocation of a patent to be stayed pending an appeal against the order.


case_title: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495


case_title: Imperial Chemical Industries plc v E I Dupont De Nemours & Co (2002) 58 IPR 227


case_outcome: referred to

case_text: On the question of the Court's power to order reinstatement, in contending that the Full Court would have that power, Alphapharm relies on Woolworths Ltd v BP plc [2006] FCAFC 52 ; (2006) 150 FCR 134 ( Woolworths ) at [30] [48] per Sundberg and Bennett JJ. Lundbeck contends that Woolworths is distinguishable. That case concerned s 68(1)(b) of the Trade Marks Act 1995 (Cth) (TM Act), in circumstances in which a trade mark had been registered pursuant to the order of the primary Judge and the issue was whether the Court, in its appellate jurisdiction, had power to order removal of the mark. There are some differences between s 192 of the Act and s 68(1)(b) of the TM Act. 18 Lundbeck points out that there has been no judicial determination of the Court's power to order reinstatement of an entry in the Register where the Court has ordered removal of particulars of an extension of term and the order for rectification of the Register has been implemented. 19 I will not explore the present question. It suffices to say that while I suspect that it would be within the implied power of the Court to order reinstatement, there is some doubt which is not clearly removed by Woolworths . 20 There should be a stay in relation to removal of the extension of the term. The potential hardship to Lundbeck if there is no stay, it succeeds in its appeal, and the Court is found to lack power to order reinstatement, far exceeds the hardship to Alphapharm if there is a stay, it successfully resists Lundbeck's appeal, and the appeal is not determined until after 13 June 2009. 21 As a condition of getting the stay, the Lundbeck parties must give to the Court the usual undertaking as to damages, an undertaking to prosecute their appeal expeditiously, and related undertakings.


case_title: Hughes v Western Australian Cricket Association (Inc) (1986] ATPR 40-748

case_text: Section 43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a broad discretion to award costs. In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 , Toohey J stated (at 2): 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order: Ritter v. Godfrey (1920) 2 K.B. 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Forster v. Farquhar (1893) 1 Q.B. 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law: Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at 12.


case_text: 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_text: There are a number of principles relevant to the exercise of the Court's power under s 477(2B) which are worth restating: (1) the court does not simply "rubber stamp" whatever is put forward by a liquidator. As Giles J said in Re Spedley Securities Ltd (In liq) (1992) 10 ACLC 1,742 at 1,745 in relation to the powers of a liquidator to compromise claims: "[T]he Court is necessarily confined in attempting to second guess the liquidator in the exercise of his powers, and generally will not interfere unless there can be seen to be some lack of good faith, some error in law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct. The same restraint must apply when the question is whether the liquidator should be authorised to enter into a particular transaction the benefits and burdens of which require assessment on a commercial basis. Of course, the compromise of claims will involve assessment on a legal basis, and a liquidator will be expected (as was made plain in Re Chase Corporation (Australia) Equities Ltd ) to obtain advice and, as a prudent person would in the conduct of his own affairs, advice from practitioners appropriate to the nature and value of the claims. But in all but the simplest case, and demonstrably in the present case, commercial considerations play a significant part in whether a compromise will be for the benefit of creditors." (2) a court will not approve an agreement if its terms are unclear: Re United Medical Protection (No 4) (2002) 20 ACLC 1,647; (3) the role of the Court is to grant or deny approval to the liquidator's proposal. Its role is not to develop some alternative proposal which might seem preferable: Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642; (4) in reviewing the liquidator's proposal, the task of the Court is: "[not] to reconsider all of the issues which have been weighed up by the liquidator in developing the proposal, and to substitute its determination for his in....a hearing de novo [but]... simply to review the liquidator's proposal, paying due regard to his or her commercial judgment and knowledge of all of the circumstances of the liquidation, satisfying itself there is no error of law or ground for suspecting bad faith or impropriety, and weighing up whether there is any good reason to intervene in terms of the "expeditious and beneficial administration" of the winding up." See ASC Timber at 1,650; see also Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834 at [10] and Warne v GDK Financial Solutions; Peridon Village Nominees [2005] FCAFC 265 ; (2006) 24 ACLC 1,019 at [60]. The Court's approval is not an endorsement of the proposed agreement but is merely a permission for the liquidator to exercise his or her own commercial judgment in the matter; (5) further, in judging whether or not a liquidator should be given permission to enter into a funding agreement (whether retrospective or not), it is important to ensure, inter alia, that the entity or person providing the funding is not given a benefit disproportionate to the risk undertaken in light of the funding that is promised or a "grossly excessive profit": Anstella Nominees Pty Ltd v St George Motor Finance Ltd (2003) 21 ACLC 1,347 at [11] and Re ACN 076 673 875 Ltd (2002) 20 ACLC 1,551 at [28]; (6) generally, the Court grants approval under s 477(2B) of the Act only where the transaction is the proper realisation of the assets of the company or otherwise assists in the winding up of the company: GDK Financial Solutions at [58] and the cases cited therein.


case_title: Corporate Affairs Commission v ASC Timber Pty Ltd (1998) 16 ACLC 1,642


case_text: 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_title: Re Gate Gourmet Australia Pty Ltd (in liq) (2005) 23 ACLC 834


case_title: Re HIH Insurance Group Ltd [2000] NSWCA 374 ; (2001) 19 ACLC 1,102


case_title: Re Spedley Securities Ltd (In liq) (1992) 10 ACLC 1,742


case_title: Re United Medical Protection (No 4) (2002) 20 ACLC 1,647


case_text: 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_title: Warne v GDK Financial Solutions; Peridon Village Nominees [2005] FCAFC 265 ; (2006) 24 ACLC 1,019


case_text: other English authority described by Lord Hoffman in Smithkline Beecham plc's (paroxetine methanesulfonate) patent as of unquestionable authority was the judgment of the Court of Appeal in General Tyre and Rubber Co v Firestone Tyre and Rubber Co [1972] RPC 457, 1A IPR 121. In that case the prior publications and patent concerned processes (or aspects of processes) for making a compound suitable for tyre treads by mixing synthetic rubber with oil and carbon black. The Court of Appeal indicated that if the prior inventor's publication contained 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 would have been shown to lack the necessary novelty. The prior inventor may have had a different starting point, but if the prior inventor's instructions were carried out and inevitably result in something being made or done which would constitute infringement of the patentee's claim, the patentee's claim would have been anticipated. Australian authorities referred to by the parties, and judgments of Full Courts of this Court in particular, do not, in substance, suggest some other approach. Senior counsel for GenRx referred to passages in the joint judgment of Black CJ and Lehane J in Bristol-Myers Squibb Co v F H Faulding and Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 in which their Honours spoke of it being sufficient that the prior publication gave a direction or made a recommendation or suggestion which could be followed by a skilled reader and that the direction, recommendation or suggestion might be implicit. However, those observations were made in the context of quoting with approval the often cited and evocative observations of the Court of Appeal in General Tyre and Rubber Co v Firestone Tyre and Rubber Co that the prior publication must contain clear and unmistakable directions to what the patentee claims to have invented. A signpost, however clear, upon the road to the patentee's invention was not sufficient. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee. The joint judgment of Black CJ and Lehane J has since been described in another recent Full Court judgment as deciding that the prior publication must contain "clear and unmistakable directions": Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 at [140]. To similar effect is the joint judgment of French and Lindgren JJ in another recent Full Court judgment Pfizer Overseas Pharmaceuticals v Eli Lilly and Co (2005) 225 ALR 416 at [311]-[317]. In the present case, GenRx relies, in substance, on two aspects of the prior publication embodied in the Rosini patent. The first is that Rosini clearly directs the skilled reader to 4-amino (alendronic) acid and not 5-amino acid (I use the shorthand description used in GenRx's submissions which somewhat simplify what the patent says). In a table, Table 6, the reader is referred to some typical pharmaceutical formulations containing amino-butan-bisphosphonic acid which included capsules containing 4-amino acid, sodium salt. That is, a monosodium salt version of the acid. One experiment in Rosini, experiment 5, instructs the reader to undertake an experiment commencing with a quality of 5-amino acid to which is added a solution of sodium hydroxide. That is then decolourized, filtered and concentrated and kept in the cold for a period of three days under gentle stirring. This produces a crystalline solid which is washed with a small amount of cold water and then methanol. After this is dried at 100deg.C, a quantity of the monosodium salt of 5-amino acid is produced. GenRx led evidence that experiment 5 provided an illustration of how a monosodium salt of 4-amino acid might be produced. It also led evidence that if experiment 5 was followed but commencing with 4-amino acid rather than 5-amino acid as instructed, then AMT would be produced. That would come about and the trihydrate (AMT being a trihydrated monosodium salt of alendronic acid) would be created if a drying process as contemplated in experiment 5 was carried out though, as Merck points out, at a different temperature in different conditions. Merck also responded by pointing out that experiment 5 commences with 5-amino-1-hydroxy pentan-1, 1-bisphosphonic acid which is not alendronic acid as that compound has an extra carbon atom. The evidence of GenRx, at its highest, was the opinion of Dr McClelland, Professor Emeritus at the University of Toronto, that a person skilled in the art would follow the Rosini patent and be led directly and without difficulty to AMT. In addition, as GenRx points out, Merck successfully prosecuted infringement proceedings in the United States in 2002 against a generic drug manufacturer which sought to sell and distribute a generic version of FOSOMAX containing, it appears, AMT. Merck did so relying on the Rosini patent. Judge Farnam of the United States District Court of Delaware concluded (a conclusion upheld on appeal in the Court of Appeals in 2003) that the claim in the Rosini patent for 4-amino-1-hydroxybutane-1, 1-bisphosphonic acid included both its free acid and sodium salt forms. His Honour's ultimate conclusion did not appear to depend on AMT being a monosodium trihydrate which, on evidence of the inventor of AMT (filed in a change of inventorship application in Australia in 1992), is of significance therapeutically. Having regard to the criticisms made by Merck of GenRx's evidence, I doubt that GenRx is, in relation to the contention advanced in this interlocutory hearing that the invention in the patent in suit is not novel, in the territory marked out by the authorities referred to at [7]-[10] above. That is, GenRx's case of invalidity based on lack of novelty does not have strong prospects of success. Indeed it has, in my opinion, limited prospects of success. However, I doubt that it is open to me to proceed on the basis that there is not a serious question to be tried on the alleged invalidity of the patent particularly having regard to the findings of the Federal District Court in the litigation in the United States. I accept there is a serious question to be tried. There appeared to be no real issue about whether Merck would suffer damage as a result of GenRx importing into Australia the generic drugs containing AMT for distribution and sale. It appeared to be accepted, and probably necessarily so, that Merck would lose sales, possibly lose market share and other generics may quickly enter the market to compete with the FOSOMAX line of products. The clear picture of Merck's present significant market share (though already adversely affected by one generic in the market, Alendro) is likely to be quickly and substantially muddied by the entry of not only the generics to be imported by GenRx, but other generics which might be encouraged to follow GenRx's example. It also appeared to not be seriously contested that Merck will lose the commercial advantages of being in the market with the patented products when the patent expires. Changes may be made to the Pharmaceutical Benefits Scheme in the near future and how they might impact on any loss suffered by Merck would be difficult to gauge. Undertakings are offered by GenRx and Symbion that neither will request a reduction of the Pharmaceutical Benefits Scheme benchmark price until final judgment is given in these proceedings.


case_title: Hill v Evans (1862) 31 LJ Ch (NS) 457

case_text: 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_text: 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_text: 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. The other English authority described by Lord Hoffman in Smithkline Beecham plc's (paroxetine methanesulfonate) patent as of unquestionable authority was the judgment of the Court of Appeal in General Tyre and Rubber Co v Firestone Tyre and Rubber Co [1972] RPC 457, 1A IPR 121. In that case the prior publications and patent concerned processes (or aspects of processes) for making a compound suitable for tyre treads by mixing synthetic rubber with oil and carbon black. The Court of Appeal indicated that if the prior inventor's publication contained 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 would have been shown to lack the necessary novelty. The prior inventor may have had a different starting point, but if the prior inventor's instructions were carried out and inevitably result in something being made or done which would constitute infringement of the patentee's claim, the patentee's claim would have been anticipated. The case considered by the House of Lords in Smithkline Beecham plc's (paroxetine methanesulfonate) patent concerned a patent for a compound, a crystalline salt. Somewhat simply described, the earlier publication concerned the same compound (though with different characteristics) and contained examples which, if skilfully manipulated in a way not described in the earlier publication, created the compound with the characteristics described in the patent in suit. The trial judge concluded the patent was not valid. This judgment was reversed by the Court of Appeal but reinstated by the House of Lords. Lord Hoffman gave the leading judgment. As noted in the headnote, the following emerges from his Lordship's judgment. The infringement had to be not merely a possible or even likely consequence of performing the invention disclosed by the prior disclosure. It had to be necessarily entailed. Anticipation necessary to defeat a patent for want of novelty required disclosure of subject-matter which, when performed, must necessarily infringe the patented invention. It was the requirement that the performance of an invention disclosed in the prior art must necessarily infringe the patent which distinguished novelty from obviousness. The performance of an invention disclosed by the prior art would not infringe the patent but the prior art would make it obvious to a skilled person how he might make adaptations which resulted in an infringing invention, then the patent might be invalid for lack of inventive step but not for lack of novelty.


case_text: 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_text: 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_title: Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341


case_text: 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_title: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8


case_outcome: followed

case_text: 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_text: 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_text: 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_title: Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47


case_text: 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_text: 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_title: Anderson v Commissioner of Taxes (Vic) [1937] HCA 24 ; (1937) 57 CLR 233


case_text: Under Pt 3 - 90 of the 1997 Act , the consolidated group is treated as a single taxpayer represented by the head company. The assets of a subsidiary member are treated as being held by the head company. As already noted, the head company inherits the tax history of the subsidiary member when it joins the group. Plainly enough, the regime established by Pt 3 - 90 is intended to reflect, within the tax framework, the commercial and economic realities of corporate group dealings: compare s 700-10. See generally Envestra Limited v Commissioner of Taxation [2008] FCA 249 at [6] - [9] per Mansfield J. As his Honour commented in Envestra at [6], "[t]hat process obviously required rules, including to set the cost for income tax purposes of the assets that a subsidiary member would bring into the group". Just as rules are needed for this purpose, so too rules are needed to govern the situation when a subsidiary member leaves the group. A subsidiary member leaves the group when it ceases to be a wholly-owned subsidiary of the head company. 57 As the earlier discussion shows, the drafting style used in Pt 3 - 90 is a distinctive one: it specifically directs attention to the objects of the scheme as a whole and in respect of aspects of the scheme, and to the particular principles that are instrumental in achieving these objects: see e.g., ss 700-10, 701 -15(2) & (3), 705 -10(2) & (3) and 711-5(2) & (3). The more detailed provisions, or 'rules', that are to be applied to give effect to these principles are to be construed in light of these principles and objects. 58 This appeal is concerned with what happens when a subsidiary leaves the group. The object of Division 711, which governs this situation, is set out in s 711-5, namely, "to preserve the alignment of the head company's costs for membership interests ... established when entities become subsidiary members": s 711-5(2). The means by which this is to be achieved is "by recognising the head company's cost for those interests, just before the leaving time , as an amount equal to the cost of the leaving entity's assets at the leaving time reduced by the amount of its liabilities": s 711-5(3). The legislation is directed to quantifying the head company's cost for membership interests "just before the leaving time", to be done in the manner indicated. This is the principle that is intended to achieve the object of preserving the relevant alignment.


case_title: Re Port Supermarket Ltd (In liquidation) [1978] NZLR 330

case_text: When used in connection with time, for example in such phrases as "at the time of", the word "at" conveys no very precise meaning. As Casey J said, in Re Port Supermarket Ltd ( In liquidation ) [1978] NZLR 330 at 337, "[t]he ordinary meaning of 'at the time of' suggests some indefiniteness, 'at' having the meaning of 'near' for example, 'at Christmas time' doesn't mean on Christmas day a period a few days either side is also included", citing Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758 at 765. See also Doe d Ellis v Owens (1843) 12 LJ Ex 53 at 56 per Lord Abinger and Sakhuja v Allen [1973] AC 152 at 175-76 per Viscount Dilhorne. What is intended by the word "at" in s 711- 45 (1) depends on the context in which it is used, including the subject matter and the legislative objects and principles.


case_title: Re Columbian Fireproofing Co Ltd [1910] 1 Ch 758


case_title: Doe d Ellis v Owens (1843) 12 LJ Ex 53


case_title: Sakhuja v Allen [1973] AC 152


case_text: The broad subject matter is the tax treatment of consolidated groups and leaving members. Section 711-5(3) expressly states that the object in s 711-5(2) preserving the relevant alignment of head company's costs for membership interests is to be "achieved by recognising the head company's cost for those interests, just before the leaving time" as equalling "the cost of the leaving entity's assets at the leaving time" reduced by its liabilities. In this context, the phrases "just before the leaving time" and "at the leaving time" are intended to refer to essentially the same time. Whilst it might be thought that the use of different words was intended to refer to different points in time ("just before" as opposed to "at"), this interpretation would not, so it seems to me, make much sense in this context. It is to be borne in mind that the calculation under s 711- 45 (1) is for the purpose of determining the tax liability of the consolidated group be reference to the assets in the subsidiary company that is about to leave the group. Absent any contrary indication, it seems most reasonable to make this calculation done just before the company leaves the group. It therefore makes much better sense if the expression "at the leaving time" (a somewhat elastic phrase) is understood as synonymous with the phrase "just before the leaving time". The phrase "at the leaving time" has a different connotation from the phrase "at midnight", which was discussed by Stone J in Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 53 ; (2003) 126 FCR 185 at [41] . 63 If the phrase "at the leaving time" is properly to be understood as meaning "just before the leaving time" in s 711-5(3), then, in the absence of any contrary indication, the same phrase is to be understood in the same way elsewhere in Div 711 and Pt 3 - 90 and, in particular, in s 711- 45 (1). I reject the taxpayer's submission that the phrase "just before the leaving time" and "at the leaving time" refer to different and distinct concepts. 64 There are a number of considerations that provide further support for this approach. First, as the analyses accompanying the Commissioner's written submissions showed, the taxpayer's construction would mean that the gain made on the sale of the shares was not brought to tax under Pt-3-90. That is, the taxpayer's construction would leave out of account under this regime the deduction of liabilities of about $25 million, which were said to be due to Mr Handbury and Nominees, although, as the taxpayer pointed out, part at least might be taxed on some other basis. The result would appear to be inconsistent with the principles on which Pt 3 - 90 is said to be based, especially s 711-5(3), and with its stated objects. It is worth emphasizing that the overarching object is to align the cost of the membership interests in a leaving entity with the cost of the net assets of the entity when the head company held all the membership interests in the leaving entity: see ss 701 -15(2) and 711-5(2). It is scarcely necessary to refer to s 15AA of the Acts Interpretation Act 1901 (Cth) to affirm the principle that a construction that promotes the objects of the statutory regime in Pt 3 - 90 , as a whole and in specific aspects, is to be preferred to a construction that does not promote these objects. Whilst I accept that, in the taxation context, a consideration of this kind is not necessarily determinative, nonetheless it seems to me an important one. I reject the taxpayer's argument that I should not place much weight on this consideration.


case_text: Payment for shares may, by agreement, be effected by a set off in discharge of a debt owing by the company to the intending member: see Whim Creek Consolidated (NL) v Federal Commissioner of Taxation (1977) 17 ALR 421 at 429. This was what happened in this case. There was no execution of the contract in respect of the shares until the set-off was effected, which was on 30 July 2004. An entitlement to be registered did not arise before this date. There was therefore no "leaving time" before 30 July 2004.


case_text: There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J. 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_text: There was some debate between the Commissioner and the taxpayer as to the significance of share allotment and issue. In the circumstances, it does not seem to me necessary to explore this issue in any detail. Speaking generally, there will be an allotment when there is a binding contract to issue and take shares and an appropriation of shares, usually by the directors, to the intending member: Commonwealth Homes and Investment Company Limited v Smith [1937] HCA 73 ; (1937) 59 CLR 443 at 461, Dixon J; Central Piggery Co Ltd v McNicoll and Hurst [1949] HCA 19 ; (1949) 78 CLR 594 at 599 per Dixon J, quoting Spitzel v Chinese Corporation (1899) 80 LT 347 at 351 per Stirling J; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 371 per Mason J. Plainly enough, an allottee acquires rights against the company, depending in part on the nature of the contract between the intending member and the company. These rights do not, however, turn the allottee into a member holding the shares. This will happen only when the shares "issue", that is, when the shareholder is "put in control of the shares allotted": see Central Piggery 78 CLR at 599-600 per Dixon J.


case_title: Spitzel v Chinese Corporation (1899) 80 LT 347


case_title: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336


case_text: 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_text: Heerey J noted in ACCC v Nationwide News Pty Ltd; ACCC v Smartcom Telecommunications (1996) ATPR 41-519 at 42,508: That statement of principle [in Hughes ] was approved by the Full Court of this Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1988) ATPR 40-841 at 49,077; (1987)17 FCR 211 at 222. I would observe that the use of the word "may" by Toohey J makes it clear that he is not suggesting an encroachment on the essentially discretionary nature of a costs order, a conclusion made all the clearer by his Honour's reference to the remarks of Jacobs J in Cretazzo . In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169 Burchett J had to consider the case of a successful defendant who had failed in respect of some issues. His Honour said: It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.


case_text: general principle as to costs was expressed by Toohey J in Hughes v West Australian Cricket Association Inc & Ors [1986] FCA 382 ; (1986) 8 ATPR 40-748 , at 48,136, where his Honour said: Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12. As Heerey J noted in ACCC v Nationwide News Pty Ltd; ACCC v Smartcom Telecommunications (1996) ATPR 41-519 at 42,508: That statement of principle [in Hughes ] was approved by the Full Court of this Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1988) ATPR 40-841 at 49,077; (1987)17 FCR 211 at 222. I would observe that the use of the word "may" by Toohey J makes it clear that he is not suggesting an encroachment on the essentially discretionary nature of a costs order, a conclusion made all the clearer by his Honour's reference to the remarks of Jacobs J in Cretazzo . In Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 169 Burchett J had to consider the case of a successful defendant who had failed in respect of some issues. His Honour said: It does not necessarily follow that the costs orders otherwise appropriate should be affected. A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.


case_outcome: applied

case_text: by McHugh J in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 96, [66] [70] are directly relevant: By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. As Devlin J said in Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co [No 2] [1953] 1 WLR 1481 at 1484; [1953] 2 All ER 1588 at 1590, when setting aside an arbitrator's costs award: "the arbitrator is not directing his mind to one of the most, if not the most, important of the elements which ought to affect his discretion, namely the result of the case. Prima facie, a successful party is entitled to his costs. To deprive him of his costs or to require him to pay a part of the costs of the other side is an exceptional measure." The combined force of the sentiments recognised above by Mason CJ, regarding the need for consistency in order to avoid injustice, and by Devlin J, regarding the most significant factor affecting the costs discretion, provides the jurisprudential basis for the important principle commonly referred to as the "usual order as to costs". The usual order as to costs The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [ Latoudis [1990] HCA 59 ; (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 at 410; per Mason CJ, Brennan, Deane, Dawson and McHugh JJ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." "Misconduct" in this context means misconduct relating to the litigation [ King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812], or the circumstances leading up to the litigation [ Bostock v Ramsey Urban District Council [1900] 2 QB 616]. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation [ Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842 ; Bostock [1900] 2 QB 616 at 622, 625, 627]; unnecessarily protracts the proceedings [ Forbes v Samuel [1913] 3 KB 706] ; succeeds on a point not argued before a lower court [ Armstrong v Boulton [1990] VR 215 at 223]; prosecutes the matter solely for the purpose of increasing the costs recoverable [ Hobbs v Marlowe [1978] AC 16] ; or obtains relief which the unsuccessful party had already offered in settlement of the dispute [ Jenkins v Hope [1896] 1 Ch 278]. Apart from anomalous examples in the equity jurisdiction [These anomalies typically feature a trust fund or property which will readily satisfy benevolent costs orders. Such examples were recognised by O 55 of the 1875 Rules which, after stating that costs shall be in the discretion of the Court, declared that "nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in Courts of Equity"], there are very few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.


case_outcome: considered

case_text: applicant refers to the observations of the Full Court in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235 where the Full Court recognised that the ordinary rule is that the successful party gets its costs, but: Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. The applicant contends in the present matter that: ... having regard to the time spent and the issues on which the Respondent failed, it is submitted that an award in its favour of 40% of its party/party costs in the proceeding gives adequate recognition of the fact that it succeeded in the overall case, but failed in most of the arguments that it advanced. In my judgment, the usual order as to costs should be made in this case. The fact that the respondents succeeded on one only of the many grounds of invalidity they asserted is not in my view, in the circumstances of this case, "misconduct" such as to require a departure from the ordinary rule. Nor is the respondents' unsuccessful claim of non-infringement. As a matter of fact, the respondents' challenge based on lack of novelty was at the forefront of its defence, and, in my assessment, was the central issue joined on the question of validity. Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), on the whole of the material in these proceedings, I order that the applicant pay the respondents costs of and incidental to the proceedings, to be taxed if not agreed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 6 February 2009 Counsel for the Applicant: Mr S Burley SC Solicitor for the Applicant: Bennett & Philp Solicitors Counsel for the Respondents: Mr D Yates SC Solicitor for the Respondents: Freehills Date of Last Submission: 28 March 2008 Date of Judgment: 6 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/57.html


case_text: respondents accept that the applicable principles are those stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681 at 685 and Siminton at [7]. In Burgundy Royale Brennan J said that a stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. He noted four factors relevant to the exercise of the discretion whether to grant a stay, three of which are relevant here.


case_text: 31 August 2009 I made orders that the time within which the appellant may file and serve a notice of appeal be extended to 2 April 2009 and that the appeal be allowed. I said there should be no order as to costs. The orders were later varied so as to cure an oversight, by adding an order setting aside the orders of the Federal Magistrates Court and in lieu thereof ordering that the application to that Court be dismissed and that the applicants pay the Minister's costs of the application. Those orders were made in exercise of the Court's appellate jurisdiction: Federal Court of Australia Act 1976 ss 25(1AA)(a) and (2)(b). After the pronouncement of the initial orders counsel for the respondents applied for a stay. Not having had the opportunity to read my reasons for making those orders, counsel was unable at the time to formulate the grounds on which he relied for the stay. On my instructions, my associate advised the parties that I would determine the application on the papers. The respondents have now made written submissions in support of a stay pending an application for special leave to appeal to the High Court. They rely on Order 37 rule 10 of the Court's Rules as the source of power to grant the stay. See Siminton v Australian Prudential Regulation Authority [2008] FCAFC 112 ( Siminton ). The appellant has not filed submissions and neither consents to nor opposes the grant of a stay. The respondents accept that the applicable principles are those stated in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84 ; (1986) 161 CLR 681 at 685 and Siminton at [7]. In Burgundy Royale Brennan J said that a stay of proceedings pending an application for special leave is an extraordinary jurisdiction, and an applicant must demonstrate exceptional circumstances before its exercise is warranted. He noted four factors relevant to the exercise of the discretion whether to grant a stay, three of which are relevant here.


case_text: There has been simply no compliance with the time limits imposed by s 477. The time limits imposed by s 477 are " strict and effective " and are an " essential part of the grant of jurisdiction " to the Federal Magistrates Court: cf SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39 at [67] per Buchanan J (Besanko J agreeing at [18]), [2007] FCAFC 39 ; 158 FCR 260 at 274. Time limits prescribed prior to the introduction of s 477 were similarly construed: WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50 , 210 ALR 190. It is not considered that the decision of the Federal Magistrates Court is attendant with sufficient doubt to warrant the grant of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 9.


case_text: Section 477(1) requires " actual (as opposed to deemed) notification of the decision " of the Tribunal. And " actual notification " requires delivery by hand: Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 at [37] , [2007] FCAFC 105 ; 159 FCR 565. See also SZKET v Minister for Immigration & Citizenship [2007] FCA 1705. 5 The Applicant had been in attendance when the decision of the Refugee Review Tribunal was handed down and received such notification. A " Checklist " completed apparently by Tribunal staff records the following: At the Handing Down Did the applicant attend the handing down? No Has the decision, etc been given to the applicant? No The Application as filed in the Federal Magistrates Court on 13 September 2007 also contains an acknowledgment by the Applicant that " the decision was received " on 17 January 2007. There had thus been compliance with the requirement imposed by s 477(1): cf Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 at [1] . 6 The Federal Magistrates Court in its 5 November 2007 decision concluded that proceedings had not been commenced within the time prescribed from the date of actual notification. That Court's reasons were, using the language of that Court, as follows: [5] The solicitors for the respondent Minister submit that the Court has no jurisdiction to hear the application. [6] I am aware of the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZKKC [2002] FCAFC 105. In that decision Giles J agreeing with Buchanan J said: That an actual notification to an applicant of a decision requires physical delivery of a written statement of the decision prepared by the Refugee Review Tribunal to the applicant. His Honour went on to say: That notification must take place within 14 days of the decision being handed down and referred to subs 430B(6)(a) and s 430B. [7] In this case that is exactly what happened. I refer to an affidavit of Angela Margaret Nanson which was filed in Court on 8 th October 2007 to which is annexed a letter from the Tribunal to the applicant's then advisers advising that the decision would be handed down on 17 th January 2006. There is also annexed the Tribunal's check-list for handing down the decision on 17 th January 2006. [8] The document makes it clear that the applicant attended the handing down on that day and a copy of the decision was given to the applicant. In the circumstances there has been compliance in the requirement of the legislation for physical delivery to the applicant of the written statement of the decision prepared by the Tribunal within 14 days of it being handed down and indeed on the day it was handed down. And such the time limit in s 477 of Migration Act does apply. [9] The applicant did not commence proceedings until 13 th September 2007 which is well outside the time. Accordingly the Court has no jurisdiction to hear the application. The applicant told the Court that the reason for the delay was that he had made an application to the Minister, presumably under s 417 of the Migration Act . That may well be, but it does not affect the operation of s 477. Concurrence is expressed with these reasons as to the operation of s 477. 7 It was not until 3 December 2007 that the Applicant commenced proceedings in this Court seeking leave to appeal from the 5 November 2007 decision of the Federal Magistrates Court. That application also sought ( inter alia ) an order " that compliance with Order 52, subrule 5(2) be dispensed with ." Order 52, r 5 of the Federal Court Rules 1979 (Cth) applies where an appeal only lies to this Court with leave and prescribes a period of 21 days as the period within which such applications are to be made. Relevantly, leave is required from an interlocutory decision of the Federal Magistrates Court: Federal Court of Australia Act 1976 (Cth), s 24(1A). 8 Order 52 r 4(2), it should be noted, provides as follows: An application shall be accompanied by an affidavit showing: (a) the nature of the case; (b) the questions involved; and (c) the reasons why leave should be given. The Affidavit as filed in this Court on behalf of the Applicant annexes a statement addressing the grant of work visas -- but that is irrelevant to the Application now before this Court. The Affidavit further annexes a statement setting forth the orders sought. The Affidavit clearly does not satisfy the requirements of O 52 r (4)(2).


case_text: The decision of the Federal Magistrates Court dismissing the application is, it is considered, an interlocutory decision for the purposes of appeal rights: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [6] per Lindgren J; Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541. Accordingly, leave to appeal is required. The Applicant by the form of his Application acknowledges as much. He also acknowledges that an extension of time is also required: cf Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [18] . 11 No prejudice is now relied upon by the Respondent Minister by reason of the failure to commence proceedings within 21 days. The Respondent Minister, however, is critical of the Affidavit as filed. That criticism is soundly based. The fact that an applicant for leave to appeal may be unrepresented is not in itself a licence to disregard those Rules of Court with which all other litigants must comply. The importance of the decision under review -- especially when protection visas are sought -- cannot be ignored. Difficulties confronting unrepresented litigants, especially in migration appeals, are very real. But applicants do not advance such prospects of success as they may have by failing, as in the present case, to set forth any explanation at all as to why it is contended that the decision of the Federal Magistrate may be erroneous and why they have not commenced proceedings within time. As has been recognised, " casual disregard of the requirements of the Rules is inappropriate ": Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] . 12 The failure of the present Applicant to comply with the time limit imposed by s 477 of the Migration Act when commencing proceedings in the Federal Magistrates Court, and his failure to comply with the time limits imposed by this Court's Rules for the commencement of appeals, only supports an inference that no real attention has been given at any point to time limits which are imposed. 13 Subsequent to the filing of the Application for Leave to Appeal on 3 December 2007 a letter dated 22 February 2008 was received by the Registry of this Court enclosing ( inter alia ): • a statement from the Pakistan Peoples Party; • two Affidavits dated 16 January 2008 deposing to an attempt to kill the Applicant; • a copy of the decision of the Refugee Review Tribunal signed on 29 December 2005; and • correspondence forwarded to the Minister. Objection was taken by the Respondent Minister to this further material being considered, even for the purposes of either an application for leave or for the purposes of an application for an extension of time. No objection, however, was taken to the further material being considered and a ruling on its admissibility being deferred. That was the course pursued. The further material has, accordingly, been considered. That material does not satisfy the requirements of O 52 r 4(2) or r 15(3)(c); nor does it provide any information of relevance to the present Application . The objection to this further material, it is considered, should be upheld and its tender rejected.


case_text: The decision of the Federal Magistrates Court dismissing the application is, it is considered, an interlocutory decision for the purposes of appeal rights: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [6] per Lindgren J; Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541. Accordingly, leave to appeal is required. The Applicant by the form of his Application acknowledges as much. He also acknowledges that an extension of time is also required: cf Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [18] .


case_title: SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39


case_text: Section 477(1) requires " actual (as opposed to deemed) notification of the decision " of the Tribunal. And " actual notification " requires delivery by hand: Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 at [37] , [2007] FCAFC 105 ; 159 FCR 565. See also SZKET v Minister for Immigration & Citizenship [2007] FCA 1705.


case_title: WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50 , 210 ALR 190


case_text: For the plaintiffs to succeed in this proceeding they will need to establish that the defendant has acted oppressively, in the sense of unfairly, to the members or to the plaintiffs: Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459.


case_text: In Jenkins v Enterprise Goldmines NL (1992) 6 ACSR 539 at 550, the Full Court of the Supreme Court of Western Australia said: In our opinion the application of the test involves a question of fairness. It is for the court to decide whether in balancing the interests of the company as a whole against minority interests the directors have acted so as to unfairly prejudice the interests of the minority. The court decides this "according to ordinary standards of reasonableness and fair dealing". Whether the conduct is unfairly discriminatory will be judged on standards which reasonable directors with such skills as directors should have, acting bona fide, would think to be fair. 29 In Jenkins 6 ACSR 539 , the Court held that once the Court is satisfied that there has been oppression or unfairness within the meaning of s 232 "it is the obligation of the Court to grant whatever relief is best suited to deal with that conduct": p 561. The Court said at 562: There is nothing in any of the authorities, however, which would tend to place a limit on the grant by the court of an appropriate remedy once it is found that the conduct complained of is oppressive, unfairly prejudicial, or unfairly discriminatory. The powers given to the court are extremely wide. They include the power to make orders regulating the conduct of the affairs of the company in the future. This necessarily involves the court making orders which may interfere with the internal administration of the company. There is nothing in the language of s 320 which suggests that the court should be reluctant to interfere where that is necessary or desirable to give effective relief. There is express power to order the appointment of a receiver and manager. 30 In my respectful opinion, the Court's comments are consistent with the wide powers given to the Court by s 233 and the scheme of s 233 which gives an unfettered discretion to the Court to fashion the appropriate remedy for the particular circumstances proved at trial. 31 The plaintiffs' case is that the defendant, by reason of the conflict which its directors have as shareholders and directors of NBBC, has acted oppressively or unfairly to the members. If the plaintiffs succeed, then they will be entitled to argue for any of the relief which is available under s 233. The relief which will be granted will be determined by reference to the circumstances of the case and will be fashioned so as to ensure that the defendant does not act in such a way as to be unfair to any of its members.


case_text: In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 , French J said (at [19], [20] and [21]): The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ... 36 In my opinion, what the defendant here seeks to do is to strike out part of the pleading because as it is contended no court could give the relief which is sought, notwithstanding that s 233 of the Corporations Act allows for such relief. That is not an application under s 31A because it would not give rise to a judgment for the whole or part of the proceeding.


case_text: In White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 , Lindgren J said (at [50]): Section 31A of the FCA Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form. Section 31A(1) is comparable to O 20, r 1 in that they are both concerned with summary judgment for the party who is prosecuting the proceeding. Section 31A(2) is comparable to O 20, r 2 in that they are both concerned with dismissals of proceedings. The word "judgment" in s 31A(2) is defined in s 4 of the FCA Act to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". It is convenient in the context of the present case to think of the judgment to which s 31A(2) refers as an order of dismissal of a proceeding. 38 It is wrong to attempt to use s 31A for something for which it was not designed. It was not designed for the purpose of striking out an application or pleading or any part of a pleading for some defect in the application or pleading. It was designed to enable the Court to give judgment in respect of a proceeding or part of a proceeding when that proceeding or that part of the proceeding has no reasonable prospect of success. It is designed to deal with issues whether it be by way of a cause of action or an issue within a cause of action. It is not designed to attack the adequacy or the sufficiency of a pleading. 39 If any of the prayers for relief were struck out as sought, the Court would not thereby be giving judgment in favour of the defendant for the proceeding or part of the proceeding. The Court could not on the defendant's application give judgment on any part of the proceeding.


case_text: The defendant submitted that the winding up of a publicly listed company in the absence of insolvency even for oppression is virtually unheard of, citing, so it was contended, the last reported case Re William Brooks & Co Ltd [1962] NSWLR 142 where a winding up order was set aside by consent in the High Court.


case_title: Re Weedmans Ltd (1974) Qd R 377

case_text: I think that contention is incorrect. In Re Weedmans Ltd (1974) Qd R 377 the company was listed on the Brisbane Stock Exchange: p 382. The trial judge (Lucas J) found that the directors of the company had acted in the affairs of the company in their own interests rather than in the interests of the members as a whole. He found that they had failed "to observe the requisite standard of commercial morality" and their conduct "reacted unfairly and unjustly against other members": p 398. He ordered the company to be wound up as "it seems to me that no other remedy is available to them": p 399.


case_outcome: distinguished

case_text: The defendant relied upon a decision of the Court of Appeal in New Zealand in Latimer Holdings Ltd v SEA Holdings NZ Ltd [2005] 2 NZLR 328 in which the Court of Appeal upheld a decision of a trial judge to enter summary judgment against plaintiffs in an application for oppression. 61 However, I do not think that that case supports the defendant's contention. It was argued in that case that the equivalent to s 232 and s 233 of the Corporations Act , s 174 of the Companies Act (NZ) , did not apply to a publicly listed company. However, the Court said (at [113]): The operative words of the provision express a general principle which is directed to "an unjust detriment to the interests of a member of the company" (Thomas at p693). That test is an objective one. The provision may be prayed in aid even if the conduct accords with the company's constitution, because even then inappropriate prejudice may still arise. Relief can be given even if the conduct complained of does not involve a want of good faith or a lack of probity. The fact that all members are treated uniformly as members will not necessarily make conduct fair. The reasonable expectations of members are distinctly relevant though this factor is not in and of itself necessarily determinative and those expectations are not necessarily restricted to purely "internal", or "formal" expectations. There are no fixed categories of cases to which s 174 apply. The provision is one of general application. Relief may be sought even with respect to a listed company. 62 In the circumstances of that case, however, the Court agreed with the trial judge that it was appropriate for him to have entered summary judgment. 63 I do not think that s 233(1)(a) is not available as a remedy because the defendant is a publicly listed company. I agree, with respect, that there is nothing in s 233 or the Corporations Act which suggests that s 233(1)(a) has no application to a publicly listed company.


case_text: I would accept, however, that it would be a rare circumstance where an order of that kind would be made and even rarer where the company is shown to be solvent. In the absence of a strong case and a clear need for the relief, the Court would not take the extreme step of winding up a solvent company: Cumberland Holdings Ltd v Washington H Soul Pattinson & Company Ltd (1977) 2 ACLR 307. 65 Now is not the time to enquire into the financial health of the defendant or to determine whether it is solvent. It is not alleged by the plaintiffs that the defendant is insolvent. It is not in the plaintiffs' interests to make such a case. 66 The following matters can be noted. First, the defendant's financial statements have been prepared upon the basis that the defendant is a going concern. Secondly, the defendant's auditor's opinion is unqualified. Thirdly, the defendant, being a publicly listed company on the ASX, has reporting requirements which would include an obligation to advise the ASX of any changes in its financial circumstances.


case_text: Jurisdictional error is not established by simply identifying an incorrect finding of fact ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ). As to the contention that the matters were trivial, even if an inference appears to have been drawn as a result of illogical reasoning, provided there is some basis for the inference, there is no jurisdictional error or error of law to support jurisdictional review ( Bond at 356). As found by Smith FM, it was open to the Tribunal to conclude that the appellant had tailored his evidence in an attempt to meet its concerns as raised with the appellant at the hearing. 28 This ground of appeal does not succeed. 29 The Tribunal determined that the appellant's claims regarding the reasons for his dismissal from employment were not credible. The appellant contends that the Tribunal committed jurisdictional error by making a credibility finding against him without asking a question it should have asked, namely whether the hotel authorities took further action against Mr S after demoting him for his political involvement with the NJP.


case_text: On the appeal the appellant raises a new argument said to arise from Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The appellant submits that the Tribunal failed to apply the correct test for a well-founded fear of persecution. The appellant submits that, the Tribunal should have applied the required "real chance" test, but instead applied a "probability" test and therefore based its decision on inadequate evidence. Specifically, the appellant submits that for each individual finding of fact, the Tribunal must decide whether that fact is true on the standard of "real chance". If there is a real chance that each fact giving rise to the appellant's individual claims is true, the appellant says that the Tribunal must find itself satisfied that there is a well-founded fear of persecution. 12 The appellant submits that the Tribunal's finding that his testimony was rehearsed and not a product of his personal experience is not supported. The appellant says that there is no material in the transcript or in the written material given to the Tribunal to support this finding, that the Tribunal could not have formed this view based upon the demeanour of the appellant alone and that, if it did so, such a finding could not be justified. Accordingly, the appellant submits that the Tribunal acted arbitrarily or capriciously in making its credibility finding. 13 The appellant requested that Smith FM listen to the tapes of the hearing. His Honour declined to do so and noted at [29] that this exercise would not put him in an equal position with the Tribunal so as to allow him to find that its conclusions were not open to it as a matter of law. His Honour noted that, even if he listened to the tapes, he ' would still be left with the unknown area of the visual and atmospheric aspects of the hearing which must have formed a part in the Tribunal's own assessment '. From a reading of the transcript his Honour concluded that it may have been open to the Tribunal, from the language and responsiveness of the appellant to the Tribunal's questions, to form the impression that the appellant was speaking from a script rather than from his actual memory (at [30]). His Honour noted that the appellant had not pointed to any particular passage in the transcript to demonstrate the contrary. 42 In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. In Guo , the High Court emphasised that the "real chance" test is not a substitute for the Convention term "well-founded fear" (at 572). A fear is "well-founded" when there is a real substantial basis for it. It is not well founded if it is merely assumed or if it is mere speculation ( Guo at 572). 43 In Guo at 573, the High Court also affirmed what was said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281, that an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. 51 The appellant submits that it is evident from the Tribunal decision that the Tribunal was not confidently satisfied that the events did not take place. The appellant submits that the inadequacy of the evidence cited by the Tribunal to support its findings gives rise to the inference that it was not confidently satisfied that the past events did not take place as the appellant claimed ( Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ). The appellant accepts that the attribution of greater weight to one piece of information as against another is not necessarily inconsistent with the correct application of Chan . He argues, however, that this is only appropriate when the question of whether each persecutory event of significance occurred is assessed on real chance and not on probability.