case_text: terms of s 100(1)(e) of the 1952 Act did not permit recourse to the type of information covered by s 7(3) of the 1990 Act (see Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 ; (2002) 212 CLR 411 at [15] [16] (pp 421 422). Those terms restricted the analysis to a consideration of the common general knowledge before the priority date. The standard for the assessment of obviousness or inventive step was not otherwise different. In the present case, Garth Living and Hotpoint relied upon the HECLA heater and other patents "... for the purposes of s 7(3) of the Act ...". It is clear that, at least to some extent, those parties are relying upon s 7(3) of the 1990 Act in support of this ground of revocation. They seek to rely upon information which did not form part of the common general knowledge but which could potentially be taken into account under s 7(3). In my judgment, they are not permitted to do so for the reason which I have noted at [132] above. Even if the prior art relied upon by Garth Living and Hotpoint could be taken into account, there is no evidence that would justify a finding that the claimed invention was obvious in light of that prior art. The evidence tendered by Garth Living and Hotpoint falls well short of the test expounded in Aktiebolaget Hassle [2002] HCA 59 ; 212 CLR 411 at [53] [54] (pp 433 434) where Gleeson CJ, Gaudron, Gummow and Hayne JJ in their joint judgment, after addressing the question of whether or not the experiments were part of the asserted inventive step or simply of a routine character which would inevitably have been attempted as a matter of course, said (at [53] [54] (pp 433 434)): That way of approaching the matter has an affinity with the reformulation of the "Cripps question" by Graham J in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [[1970] RPC 157]. This Court had been referred to Olin in the argument in Wellcome Foundation [(1981) [1981] HCA 12 ; 148 CLR 262 at 267. See also Washex Machinery Corporation v Roy Burton & Co Pty Ltd (1974) 49 ALJR 12 at 16]. Graham J had posed the question [ Olin Mathieson [1970] RPC 157 at 187-188. The approach taken in Olin appears now to be disfavoured by the English Court of Appeal: Pharmacia Corporation v Merck & Co Inc [2002] RPC 775 at 819-820, but it still has support in the English profession: Cole, "Inventive Step: Meaning of the EPO Problem and Solution Approach, and Implications for the United Kingdom -- Part II" [1998] European Intellectual Property Review 267 , at p 270]: "Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art and of the facts of the nature and success of chlorpromazine, directly be led as a matter of course to try the CF3 substitution in the '2' position in place of the C1 atom in chlorpromazine or in any other body which, apart from the CF3 substitution, has the other characteristics of the formula of claim 1, in the expectation that it might well produce a useful alternative to or better drug than chlorpromazine or a body useful for any other purpose?" (Emphasis added.) That approach should be accepted. The reasoning of the primary judge Lehane J did not treat "routine" in that way. He erred by giving it an operation more favourable to Alphapharm's case. What his Honour did was in line with the position which now apparently obtains in England, that "all of the courses of action which present themselves without the exercise of invention are obvious" [ Pharmacia Corporation v Merck & Co Inc [2002] RPC 775 at 818]. His Honour did not assess what was said by the expert witnesses concerning the procedures they would have followed by making findings whether they would have been led directly as a matter of course to pursue one avenue in the expectation that it might well produce the claimed compound. This ground of revocation has not been made out. Fair Basis Section 40(3) of the 1990 Act requires that the claims of the Patent be fairly based on the matter described in the specification. This is substantially the same requirement as was laid down by s 40 of the 1952 Act.


case_outcome: applied

case_text: his text Patents for Inventions (5 th ed, Stevens, 1983) Blanco White said (at 4-102) (p 53): The test for lack of novelty is essentially the same as the test for infringement; that is to say, a prior use will invalidate a claim ... if it was such that it would infringe that claim if carried out after the grant of the patent concerned; while a prior disclosure will invalidate if it contains a clear description of, or clear instructions to do or make, something that would infringe if carried out after grant. This formulation has been applied in Australia (see Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 ; (2008) 76 IPR 618 at [157] (p 657) (per Lindgren J)). In assessing novelty, each alleged anticipation must be considered separately. Each alleged anticipation must disclose each and every one of the essential integers of a claim or claims under consideration.


case_text: Bristol-Myers Squibb Co v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 , Black CJ and Lehane J, in a joint judgment, after reviewing several relevant authorities at [64] [66] (pp 547 548), at [67] (pp 548 549) said: What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it.


case_text: United Kingdom Court of Appeal in General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd (1971) 1A IPR 121, [1972] RPC 457 at 485 486 held that, if the prior inventor's publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee's claim if carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty. In that sense, it will have been anticipated. It is a question of whether or not the prior inventor's publication would render the later effort an infringement of the patentee's claim, on the assumption that the patentee's patent is valid. The Court of Appeal held ([1972] RPC at 486): If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not do so, the patentee's claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee's claim the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented: Flour Oxidising Co Ltd v Carr & Co Ltd ((1908) 25 RPC 428 at 457, line 34, approved in BTH Co Ltd v Metropolitan Vickers Electrical Co Ltd (1928) 45 RPC 1 at 24, line 1). A signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.


case_text: propositions were confirmed by the Full Court in ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc (2000) 106 FCR 214 at [22] [23] (p 224), where the Court said: Applicable statutory regime The patent was granted under the Patents Act 1952 (Cth) (the 1952 Act). The 1952 Act has been repealed and the legislation now in force is the Patents Act 1990 (Cth) (the 1990 Act). Section 233 of the 1990 Act provides: "(1) Subject to this Chapter and the Regulations, this Act applies in relation to a standard patent or a petty patent granted under the 1952 Act as if the patent had been granted under this Act. ... (4) Objection cannot be taken to a patent mentioned in subsection (1), and such a patent is not invalid, so far as the invention is claimed in any claim, on any ground that would not have been available against the patent under the 1952 Act." It follows that the patent can only be revoked under the 1990 Act, and only on a ground of invalidity which is provided by that Act and would also have been available under the 1952 Act. And where the ground of invalidity under the 1952 Act is narrower than the corresponding ground under the 1990 Act, the patentee has the benefit of the narrower ground. That follows from the decision of the Full Court in NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd [1993] FCA 404 ; (1993) 44 FCR 239 at 253-254. Section 234(2) and s 234(5) are also relevant to the cross-claimants' claims that the Patent is invalid and should be revoked. These statements were expressly approved by the Full Court in ICI Chemicals & Polymers Ltd 106 FCR 214 at [51] (p 230).


case_text: the present case, there is no dispute amongst the parties as to the principles of construction to be applied to the Patent. All parties referred me to the joint judgment of the Full Court in Jupiters Ltd v Neurizon Pty Ltd [2005] FCAFC 90 ; (2005) 222 ALR 155 , (2005) 65 IPR 86 , (2005) AIPC 92-098 at [67] . Reliance was also placed by some of the respondents upon the statements made at [68] in the same case. Those paragraphs are in the following terms: There is no real dispute between the parties as to the principles of construction to be applied in this matter although there is some difference in emphasis. It suffices for present purposes to refer to the following: (i) the proper construction of a specification is a matter of law: Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; (ii) a patent specification should be given a purposive, not a purely literal, construction: Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331 ; [2000] FCA 890 at [81] ( Flexible Steel Lacing ); and it is not to be read in the abstract but is to be construed in the light of the common general knowledge and the art before the priority date: Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 ; 177 ALR 460 ; 50 IPR 513 ; [2001] HCA 8 at [24] ; (iii) the words used in a specification are to be given the meaning which the normal person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification: Décor Corporation Pty Ltd at 391; (iv) while the claims are to be construed in the context of the specification as a whole, it is not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification, although terms in the claim which are unclear may be defined by reference to the body of the specification: Kimberley-Clark v Arico at [15]; Welch Perrin & Co Pty Ltd v Worrel [1961] HCA 91 ; (1961) 106 CLR 588 at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 at 478; the body of a specification cannot be used to change a clear claim for one subject matter into a claim for another and different subject matter: Electric & Musical Industries Ltd v Lissen Ltd [1938] 4 All ER 221 at 224 5 ; (1938) 56 RPC 23 at 39; (v) experts can give evidence on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings to be given by skilled addressees to words which might otherwise bear their ordinary meaning: Sartas No 1 Pty Ltd v Koukourou & Partners Pty Lt d [1994] FCA 1529 ; (1994) 30 IPR 479 at 485 6 ( Sartas No 1 Pty Ltd ); the court is to place itself in the position of some person acquainted with the surrounding circumstances as to the state of the art and manufacture at the time ( Kimberley-Clark v Arico at [24]); and (vi) it is for the court, not for any witness however expert, to construe the specification; Sartas No 1 Pty Ltd at 485 6. We may add that the area of invention with which this proceeding is concerned is a particularly narrow one. It is one in which business rivals are striving to invent around the patented inventions of others and within narrow regulatory limits. In such a context it is, in our view, important to recognise that claims made for an invention may need to be formulated narrowly to avoid invalidity. While accepting the primacy of purposive construction in interpreting patents, such a construction may well provide little by way of illumination where, as here, the inventive context is a cramped one. It is not appropriate to take a claim carefully drawn to avoid invalidity and then permit a wider "purposive" construction of it for infringement purposes: Grove Hill Pty Ltd v Great Western Corp Pty Ltd (2002) 55 IPR 257 ; [2002] FCAFC 183 at [311] . In Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC (No 2) [2006] FCA 1787 ; (2006) 71 IPR 46 at [62] [64] (pp 61 62), Young J distilled from a number of authorities a set of principles which his Honour held should ordinarily guide the construction of patents. The observations which his Honour made in that case are reminiscent of the statements made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098 and need not be set out in full here. However, I am content to adopt and apply what his Honour said, which, to some extent, helpfully adds to the statements of principle made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098.


case_text: observations made by his Honour were cited with approval by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 at [69] (pp 300 301). After the description of the preferred embodiments set out in the Patent, there is a description of an embodiment of the invention by reference to accompanying schematic drawings. This description is to be found between line 5 on p 4 and line 20 on p 9 of the Patent. Eight drawings are depicted in the schematic drawings forming part of the Patent. The Claims The Patent contains 20 Claims which define the invention. These are found on pp 10 12 of the Patent. There are two independent Claims (Claims 1 and 15). As is usually the case, each of the independent Claims is followed by several dependent Claims which become progressively narrower as additional features or limitations are added to the invention. Fair basis involves a comparison between the claims made in the Patent and what is disclosed in the specification in order to determine whether there is a "real and reasonably clear disclosure" of the invention claimed, or whether the claims "travel beyond" the invention described (see Lockwood Security Products Pty Ltd [2004] HCA 58 ; 217 CLR 274 at [57] (p 295), [69] (p 300) and [83] (p 306) (per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ)). I cannot see how, in the present case, the claims travel beyond the invention which has been described in the specification. Garth Living and Hotpoint seemed to be advancing this ground as a means of dealing with Bitech's construction of the Patent. Having regard to the construction which I have placed upon Claim 1, I do not think there is any room for a challenge based upon the absence of fair basis. This ground must be rejected. For the above reasons, Bitech's Application must be dismissed as must the Cross-Claims for a declaration of invalidity in respect of the Patent and for revocation of the Patent. I will make orders accordingly.


case_text: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235, Aickin J said: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement (see, e.g., Harwood v. Great Northern Railway Co. [(1865) [1865] EngR 708 ; 11 H.L.C. 654 , at p. 681 [1865] EngR 708 ; [11 E.R. 1488 , at pp. 1498-1499]). Here no prior object and no object according to a prior document involved or incorporated all the integers of any one of the claims and could therefore possibly constitute an infringement. Accordingly I am satisfied that the objection of want of novelty has not been made out. This test is applicable to the circumstance where the alleged anticipation resides in a prior apparatus that would, if it contained all of the necessary integers, fall within the scope of the claims. Therefore, this test would directly apply to the alleged anticipation constituted in the present case by the HECLA heater.


case_text: case advanced by Garth Living and Hotpoint in support of the proposition that the relevant claims in the Patent lacked novelty was rather loosely put in the sense that, as I understood it, it was impermissibly founded upon selectively aggregating individual items of information in order to present a mosaic or an entire picture favourable to those parties' case for revocation. This type of approach was rejected by the High Court in Minnesota Mining and Manufacturing Company v Beiersdorf (Australia) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 292 293. Bitech submitted that: ... Neither the HECLA heater nor the apparatus described in any of the three prior patent specifications incorporates the feature of "screen means" which is capable of both diffusely transmitting light from a flame effect means and reflecting light from a fuel means so that simulated flames appear to emanate between the fuel means and an image of the latter means reflected on the screen means. This being an essential integer of Claim 1, upon which the other relevant claims are dependant, it is not necessary to go further. That submission was made good by my inspection of the HECLA heater and by a careful consideration of the prior patent specifications. The HECLA heater contains a very primitive attempt to simulate flames and fuel and plainly goes nowhere near the essential integers of the Patent referred to in Bitech's submission. The prior patent specifications do not provide clear and unmistakeable directions to construct an apparatus which incorporates the feature of the screen means which was the subject of Bitech's submission extracted at [126] above. Garth Living and Hotpoint were unable to present a coherent and persuasive submission which identified such clear and unmistakable directions. The evidence of Professors Nugent and Monro did not assist in that endeavour. Further, the generalised assertions made by Professors Nugent and Monro to the effect that the existence of the HECLA heater and Australian Patent Application No 3567/66 was part of the common general knowledge before the priority date of the Patent are not persuasive. The knowledge must be available to all in the relevant trade and must be treated as part of a general body of knowledge in that trade (see Minnesota Mining and Manufacturing Company 144 CLR at 292). Patent specifications do not become part of the common general knowledge merely by reason of their publication: Minnesota Mining and Manufacturing Company 144 CLR at 294 295.


case_title: Populin v HB Nominees Pty Ltd [1982] FCA 45 ; (1982) 59 FLR 37 , (1982) 41 ALR 471

case_text: deciding whether a patent has been infringed, the Court is obliged to adopt a common sense construction of the claims in the patent, having regard to the prior knowledge as at the priority date, and, having done so, to determine whether the alleged infringer has taken all of the essential features or integers of the patentee's claims as determined by that construction ( Populin v HB Nominees Pty Ltd [1982] FCA 45 ; (1982) 59 FLR 37 at 40 41 [1982] FCA 45 ; , (1982) 41 ALR 471 at 475). The Patent is for an invention entitled "Apparatus for Simulating Flames". It was granted on 20 July 1992 on an application filed on 9 February 1990 as a Convention Application pursuant to Pt XVI of the 1952 Act. It claims priority from the filing of two basic applications in the United Kingdom on 10 February 1989 and on 15 September 1989 respectively. The Description The specification commences with a description of the nature of the invention and some relevant background. The first two paragraphs of that description, which appear between lines 3 and 16 on p 1a of the Patent, are in the following terms: This invention relates to apparatus for simulating flames. The apparatus may be part of, or embodied in a heating appliance (such as an electric or gas fire) in order to create the impression of flames due to combusting fuel. Many attempts have been made in the past to simulate combusting fuel. The prior art devices often included some means intended to represent flickering flames but they lacked realism. Moreover, when an appliance having such an effect is seen from day to day, it becomes less convincing with the passage of time. In many prior art devices, dust and dirt can also build up on various surfaces so that any initially pleasing effect is spoilt thereby detracting from any realism. At least the preferred embodiments of the invention seek to solve these problems.


case_text: Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC (No 2) [2006] FCA 1787 ; (2006) 71 IPR 46 at [62] [64] (pp 61 62), Young J distilled from a number of authorities a set of principles which his Honour held should ordinarily guide the construction of patents. The observations which his Honour made in that case are reminiscent of the statements made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098 and need not be set out in full here. However, I am content to adopt and apply what his Honour said, which, to some extent, helpfully adds to the statements of principle made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098.


case_outcome: cited

case_text: submitted, and I accept, that the scope of the claims made in a patent may, and almost always does, extend beyond a description of the preferred embodiment. In Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95, Gummow J said: The circumstance that something is a requirement for the best method of performing an invention does not make it necessarily a requirement for all claims; likewise, the circumstance that material is part of the description of the invention does not mean that it must be included as an integer of each claim. Rather, the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification.


case_text: the present case, there is no dispute amongst the parties as to the principles of construction to be applied to the Patent. All parties referred me to the joint judgment of the Full Court in Jupiters Ltd v Neurizon Pty Ltd [2005] FCAFC 90 ; (2005) 222 ALR 155 , (2005) 65 IPR 86 , (2005) AIPC 92-098 at [67] . Reliance was also placed by some of the respondents upon the statements made at [68] in the same case. Those paragraphs are in the following terms: There is no real dispute between the parties as to the principles of construction to be applied in this matter although there is some difference in emphasis. It suffices for present purposes to refer to the following: (i) the proper construction of a specification is a matter of law: Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; (ii) a patent specification should be given a purposive, not a purely literal, construction: Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331 ; [2000] FCA 890 at [81] ( Flexible Steel Lacing ); and it is not to be read in the abstract but is to be construed in the light of the common general knowledge and the art before the priority date: Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 ; 177 ALR 460 ; 50 IPR 513 ; [2001] HCA 8 at [24] ; (iii) the words used in a specification are to be given the meaning which the normal person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification: Décor Corporation Pty Ltd at 391; (iv) while the claims are to be construed in the context of the specification as a whole, it is not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification, although terms in the claim which are unclear may be defined by reference to the body of the specification: Kimberley-Clark v Arico at [15]; Welch Perrin & Co Pty Ltd v Worrel [1961] HCA 91 ; (1961) 106 CLR 588 at 610; Interlego AG v Toltoys Pty Ltd [1973] HCA 1 ; (1973) 130 CLR 461 at 478; the body of a specification cannot be used to change a clear claim for one subject matter into a claim for another and different subject matter: Electric & Musical Industries Ltd v Lissen Ltd [1938] 4 All ER 221 at 224 5 ; (1938) 56 RPC 23 at 39; (v) experts can give evidence on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings to be given by skilled addressees to words which might otherwise bear their ordinary meaning: Sartas No 1 Pty Ltd v Koukourou & Partners Pty Lt d [1994] FCA 1529 ; (1994) 30 IPR 479 at 485 6 ( Sartas No 1 Pty Ltd ); the court is to place itself in the position of some person acquainted with the surrounding circumstances as to the state of the art and manufacture at the time ( Kimberley-Clark v Arico at [24]); and (vi) it is for the court, not for any witness however expert, to construe the specification; Sartas No 1 Pty Ltd at 485 6. We may add that the area of invention with which this proceeding is concerned is a particularly narrow one. It is one in which business rivals are striving to invent around the patented inventions of others and within narrow regulatory limits. In such a context it is, in our view, important to recognise that claims made for an invention may need to be formulated narrowly to avoid invalidity. While accepting the primacy of purposive construction in interpreting patents, such a construction may well provide little by way of illumination where, as here, the inventive context is a cramped one. It is not appropriate to take a claim carefully drawn to avoid invalidity and then permit a wider "purposive" construction of it for infringement purposes: Grove Hill Pty Ltd v Great Western Corp Pty Ltd (2002) 55 IPR 257 ; [2002] FCAFC 183 at [311] . In Welch Perrin & Co Pty Ltd v Worrel [1961] HCA 91 ; (1961) 106 CLR 588 , a Full Court of the High Court (Dixon CJ, Kitto and Windeyer JJ), said (at 609): Most of the argument before us centred upon the construction of the specification and, as in every patent case, it is necessary to determine from it what exactly is the invention it describes and for which a monopoly is claimed, before proceeding to consider objections to the validity of particular claims: Electrical and Musical Industries Ltd. v. Lissen Ltd [(1938) 56 RPC 23 , at p 39]. At 610, the Court said: If it is impossible to ascertain what the invention is from a fair reading of the specification as a whole, that, of course, is an end of the matter. But this objection is not established by reading the specification in the abstract. It must be construed in the light of the common knowledge in the art before the priority date. The general principles governing the construction of specifications are well known, and no lengthy reference to them is necessary. It is, however, fitting that we remind ourselves of the criterion to be applied when it is said that a specification is ambiguous. For, as the Chief Justice pointed out in Martin v. Scribal [(1954) [1954] HCA 48 ; 92 CLR 17 , at p 59], referring to Lord Parker's remarks in National Colour Kinematograph Co. Ltd. v. Bioschemes Ltd [(1915) 32 RPC 256] , we are not construing a written instrument operating inter partes, but a public instrument which must, if it is to be valid, define a monopoly in such a way that it is not reasonably capable of being misunderstood. Nevertheless, it is to be remembered that any purely verbal or grammatical question that can be resolved according to ordinary rules for the construction of written documents, does not, once it has been resolved, leave uncertain the ambit of the monopoly claimed (see Kauzal v. Lee [(1936) [1936] HCA 39 ; 58 CLR 670 , at p 685]). The specification must be read as a whole. But it is a whole made up of several parts, and those parts have different functions. Courts have often insisted that it is not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification. Similarly, if a claim be clear it is not to be made obscure simply because obscurities can be found in particular sentences in other parts of the document. The Court then moved to consider in some detail the patent in dispute in that case. After setting out the objects of that patent, the Court said (at 612): At this point in a modern specification one might expect to find a general description of what the inventor asserts his invention consists of, commonly called a "consistory clause". This, however, is not an essential part of the body of a specification. It is not required by the Act. Its purpose may be quite well met by the claims themselves: United Shoe Machinery Corporation's Application [(1939) 57 RPC 71]. Indeed, the usual practice in England is now to use in the consistory clause the wording of the broadest of the claims: see Mr. Blanco White's book, Patents for Inventions 2nd ed. (1955) p. 34n. The present Australian Act expressly requires the claim or claims to define the invention: s. 40. In a patent for a combination, such as this is, the most important function of the body of the specification is to show what are the mechanical means which, operating together, produce the result claimed; and how they so operate.


case_outcome: related

case_title: SFE Corporation Limited, in the matter of SFE Corporation Limited [2006] FCA 670


case_outcome: referred to

case_title: A J Burr Ltd v Blenheim Borough Council (1980) 2 NZLR 1

case_text: Some cases advocate a position somewhere between the two poles. A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at 4 is an example. There, Cooke J said that other than in cases which involve "flagrant invalidity" an administrative decision is generally to be taken to be operative until set aside by judicial determination. 43 Likewise, the error in Bhardwaj might be characterised as "flagrantly invalid" to use the language of Cooke J in Blenheim . In their joint judgment, Gaudron and Gummow JJ referred to the decision as one which "clearly involved a failure to exercise jurisdiction". Hayne J said that it was not seriously disputed in the Courts below or in the High Court that due to an oversight, the Tribunal had not given the respondent the opportunity to appear and give evidence and present arguments which s 360(1)(a) of the Migration Act 1958 (Cth) required he be given before the Tribunal made the September decision. This was the jurisdictional error involved.


case_text: It says, correctly, that when the jurisdiction of the Court to challenge an administrative decision is invoked whether under s16 of the ADJR Act or under s 39B of the Judiciary Act , the Court is confined to exercising judicial power. Since it is not permissible for the Court to exercise administrative power, it cannot conduct a merit review of the decision, that is, an inquiry to determine the correct or most appropriate outcome. Its role is limited to determining whether the administrative decision is within the power conferred on the official and whether the decision-making process, in so far as the decision-maker was bound to comply with a particular process, has been followed. The Court has no jurisdiction simply to cure administrative injustice or error. The merits of the administrative action as distinct from its legality are not a matter for the Court: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40-41; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36.


case_text: It is fundamental to the Authority's case that invalidity be established in respect of each approval and registration. It is necessary to establish that the decisions to approve and to register were actually induced or affected by fraud on the balance of probabilities and having due regard to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. This is sometimes referred to as operative fraud. It is not enough to prove a "real suspicion" or a "real possibility": Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112-113. Wati on this point was referred to with apparent approval by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [25] . The alleged fraud must affect the decision-making process: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 at [33] .


case_text: The word "decision" in the Code has, by virtue of s 167(4) the same meaning as in the AAT Act . There was no suggestion that the removal of the approvals and registrations by the Authority was other than a "decision" for the purposes of the wide definition of that word provided in s 3(3) of the AAT Act . The issue is whether for the purposes of s 25(1)(a) of the AAT Act it was a "decision(s) made in the exercise of powers conferred by ..." s 167 of the Code. The meaning of "decision" in s 25 of the AAT Act was considered in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. The majority construed "decision" as including one in purported exercise of powers conferred by the enactment: Brian Lawlor per Bowen CJ at 317 and Smithers J at 339. 84 A number of decisions, using that word loosely, were made by the Authority. It made a decision to remove the approvals and registrations from the Record and Register respectively. This was the consequence of its earlier decision to treat these approvals and registrations as of no legal effect: a decision that, at law, it had made no decisions to approve under s 19 or to register under s 20 of the Code. 85 The question here is whether the Authority's decision to regard the various approvals and registrations as of no effect at law and to implement that decision by "removing" those approvals and registrations from the Record and the Register constituted a purported exercise of powers conferred by the enactment and therefore reviewable pursuant to s 167 of the Code by the AAT. This test is an objective one. I would respectfully adopt what Bowen CJ said on this point in Brian Lawlor at 314-315: It seems inappropriate to interpret s 25 so as to make this dependent upon the state of mind of the official. It would, if adopted, appear to introduce a false issue and to impose upon the person aggrieved the burden of proving it. He could well be the very person, who was ignorant of that state of mind. Perhaps also it would involve the consequence that if the evidence on an appeal to the Tribunal showed that an official did not honestly believe he was acting in the exercise of powers conferred by the enactment, the appeal would have to be dismissed notwithstanding that the absence of honest belief might not affect the legal standing of the decision. ... in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. (Emphasis added) In my opinion it did not. The Authority took no step provided for under Div 5 of Part 2 of the Code directed to cancellation of approvals and registrations. 86 Section 35 of the Code provides that the Authority must not cancel an approval or registration unless it has first given notice and then waited for an adequate period thereafter as provided under s 35(a) and (b). The Authority did not give any such notice(s). It did not make entries in the Record or Register provided for under s 45 following cancellation under the Code . Nor did it give any notice under s 45A. This was not by reason of error or omission on the part of the Authority. This is not a case involving a "colourable exercise of actual power": Brian Lawlor at p 342 per Deane J. The Authority deliberately took no steps to cancel the approvals and registrations under the Code. Here, the Authority placed no reliance, actual or purported, upon the Code to remove the approvals from the Record and the registrations from the Register. Indeed it stated in correspondence to Imtrade that as a result of fraud arising from the provision of the false name and address in respect of Evergreen the relevant active constituents were "unapproved" and the relevant chemical products were "unregistered". 87 The Authority did issue a recall notice to Imtrade under s 101 of the Code. It was not a pre-condition to doing so that the Authority must first have cancelled the registrations under Division 5 of Part 2 of the Code. It is open to the Authority to issue a recall notice where a chemical product is not registered: s 101(1)(a). The Authority considered that the various chemical products were unregistered because the registrations, vitiated by fraud, had been "removed" from the Register. 88 Accordingly it is, I think, wrong to characterise its conduct, as Imtrade does, as, in effect, cancellation of the approvals and registrations under the Code.


case_text: Invalidity, in a particular case, may be demonstrated by consensus. In Comptroller General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 518 ; (1991) 103 ALR 661 the Full Court concluded that an administrative order made under the provisions of Pt XVa of the Customs Act 1901 (Cth) could be revoked by agreement of the parties without the necessity for a judicial determination.


case_text: The Authority has asked this Court to resolve the mixed questions of fact and law upon its core legal contention that the approvals and registrations variously were invalid because they were affected by fraud. The AAT has no jurisdiction to determine such a question of law: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163. In treating the several approvals and registrations as invalid and of no effect the Authority did not exercise a regulatory power under the legislative scheme and has not made a decision reviewable under s 167(1)(f) of the Code or otherwise. 90 For the above reasons the application, to the extent that it seeks declarations that the 9 approvals and 52 registrations are of no legal effect, will be dismissed. Their removal from the Record and the Register was unlawful. The relevant approvals and registrations ought be restored to the Record and the Register, each effective from the respective dates of their original approval and registration. There will be declarations that the variation of the relevant particulars to 47 of the 52 registrations is, in each case, of no legal effect. This, as I have said, does not affect the validity of the prior registrations to which the variations relate. There ought, in respect to the first respondent, be declarations and prerogative relief, as sought by the applicant, subject to questions of unnecessary overlap. I will invite the parties to bring in a minute of consent orders. There will be liberty to the parties to apply in the event that such agreement cannot be reached. I will also hear the parties on the question of costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 12 September 2008 Counsel for the Applicant: Mr J D Allanson SC Solicitor for the Applicant: Clayton Utz Counsel for the Second Respondent: Mr M McCusker QC with Mr K De Kerloy Solicitor for the Second Respondent: Freehills Date of Hearing: 23 July 2008 Date of Judgment: 12 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1393.html


case_text: The relative invalidity school argues that invalidity is required to be established by judicial, not administrative, determination and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242 at 277 per Aikin J; Ousley v R per Gummow J at 130-131; R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 at 33. It too has support amongst commentators: M Taggart, "Rival Theories of Invalidity" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s Problems and Prospects (Oxford University Press and the Legal Research Foundation Inc, 1988) at p 70; Aronson and Dyer in Judicial Review of Administrative Action (2 nd ed, LBC, 2000) conclude on this issue at p 499: The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Kirby J cites other strong support both judicial and from legal commentators in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103]-[104].


case_text: Further, the applicant seeks a writ of certiorari against the AAT, quashing its decision to issue the stay orders commensurate with the ancillary or accrued jurisdiction of the Court to issue a writ of prohibition sought under s 39B(1) of the Judiciary Act : Klewer v Dutch [2000] FCA 509 ; (2000) 99 FCR 217 at 230 [53] - [54] per Hill J. 12 The Code is part of a legislative scheme including the Agricultural and Veterinary Chemicals Code Act 1994 (Cth), the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth), and the Agricultural and Veterinary Chemicals Act 1994 (Cth). 13 The second reading speech in respect of the Agricultural and Veterinary Chemicals Code Bill contained the following: Through this mechanism, evaluation, registration and control of agricultural and veterinary chemical products and related matters will be administered uniformly across Australia by the National Registration Authority for Agricultural and Veterinary Chemicals. The control measures apply up to the point of retail sale with the states and territories remaining responsible for control of use matters. ... The agvet code focuses on the registration of chemical products, approval of active constituents, and approval of labels. The overriding criteria to be addressed by the NRA are public health, occupational health and safety, the environment, product performance, and trade and commerce. The public will be invited to comment in respect of each chemical product containing a new active constituent prior to determination of an application. The NRA will also be able to reconsider an existing registered chemical product to ensure it continues to meet contemporary safety and performance standards.


case_outcome: discussed

case_text: The Authority submits that the approval of each active constituent by the entry pursuant to s 19(2)(a) of the Code in the Record of the relevant particulars was in law not an approval and could be ignored. The same is said of the registrations and the variations to the relevant particulars of registrations under s 20(2)(a) and s 29(1)(h)(i) respectively. This is so, it says, because subject to limited exceptions, a person will not be permitted to keep an advantage obtained by fraud: an administrative decision procured by fraud may be ignored as an invalid decision and of no effect at law. This is what the Authority has purported to do here. It has manifested its view that it may ignore the approvals in the Record and the registrations in the Register, which are each in electronic form, by deleting each of them. They no longer appear in the Record or the Register. It has not purported, as I have said, to cancel the approvals and registrations under the provisions of the Code. The Authority submits that the decision of the Full Court in Leung v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 79 FCR 400 is warrant for their actions. 31 The issue in Leung was whether the Minister for Immigration could, absent an express statutory power to do so, revoke the grant of a certificate of Australian citizenship where the applicants had misled his delegate about their factual circumstances. The appellants sought a certificate of Australian Citizenship, which involved two steps: the Minister must grant the Certificate and the applicant must make the prescribed pledge of commitment. The appellants made representations of fact, asserting that during their time spent overseas they were engaged in activities beneficial to the interests of Australia, namely the promotion and export of Australian goods (rough opals and fresh produce to Hong Kong). On the basis of these representations the Minister exercised his discretion under s 13(1) of the Australian Citizenship Act 1948 (Cth) in favour of the appellants. In fact, the applicant and his wife had both been practicing as medical professionals in Hong Kong for the better part of the time they initially claimed to have been promoting Australian exports. The Certificates were granted. However, before the appellants made their pledges of commitment, it was discovered that the representations of fact were false. The Minister's delegate then decided to 'revoke' the decision to grant the Certificates. 32 The Court was divided in its reasoning. The majority (Finkelstein J and Beaumont J concurring) concluded that as the decision to grant the certificate was procured by fraud it was invalid and could be ignored without any formal process of revocation. It was unnecessary, the majority concluded, to rely upon any express or implied power of revocation under the statute to proceed as it did. 33 Heerey J resolved the appeal on the basis of an implied statutory power to revoke a certificate of citizenship where a statutory criterion for the issue of the certificate did not in fact exist although such a power terminated once the pledge of commitment had been made because a person could not be deprived of citizenship other than by virtue of s 21 of the Citizenship Act . His Honour said: "there is no general rule or principle of administrative law that decisions based upon a wrong factual basis may be revoked by the decision-maker still less that such decisions do not need to be revoked and may simply be ignored. The supposed general rule would necessarily extend indefinitely in time and to factual errors for which persons affected by the decision were in no way responsible. Such persons might have arranged their own affairs on the basis of the decision. 34 Finkelstein J however expressed the opinion that: ... the true principle is this. To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. ... Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions. 42 In Leung the question of fact and law as to whether Mr and Mrs Leung were entitled to the favourable exercise of the discretion under s 13(4)(b)(i) of the Citizenship Act was disputed. The dispute involved questions of fact. The Minister had not purported to rely upon the common law doctrine of vitiation by fraud but rather upon s 33(3) of the Acts Interpretation Act 1901 (Cth) as the source of power to revoke the certificate of citizenship. The AAT resolved the factual dispute in favour of the Minister. Finkelstein J observed that no point had been taken that the AAT lacked jurisdiction and proceeded on the basis that it did. Importantly however, when the matter was before the Full Court the factual controversy had been resolved. It was not in dispute by then that the decision to grant the certificate of citizenship had been procured by misrepresentation. The question was whether in those circumstances the decision to grant the certificate as a result of proven misrepresentation was thereby vitiated. 45 The concept of invalidity involves questions of mixed fact and law. There may be evidentiary considerations. In Leung, Finkelstein J, drawing on observations by Lord Hoffman in R v Wicks [1997] UKHL 21 ; [1998] AC 92 at 115, said at 413: In other words the presumption of the validity of an administrative decision, to the extent that the presumption is to be made in a particular case, is no more than a rule of evidence pursuant to which a certain assumption will be made by a judge unless there is evidence which contradicts that assumption. As Kirby J said in Ousley at 1594 the presumption is merely a tool in the process of reasoning to a decision. See also Wigmore on Evidence (1981) vol 9, par 2491.


case_title: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24


case_text: The relative invalidity school argues that invalidity is required to be established by judicial, not administrative, determination and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242 at 277 per Aikin J; Ousley v R per Gummow J at 130-131; R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 at 33. It too has support amongst commentators: M Taggart, "Rival Theories of Invalidity" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s Problems and Prospects (Oxford University Press and the Legal Research Foundation Inc, 1988) at p 70; Aronson and Dyer in Judicial Review of Administrative Action (2 nd ed, LBC, 2000) conclude on this issue at p 499: The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Kirby J cites other strong support both judicial and from legal commentators in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103]-[104]. 37 The concept of absolute invalidity has been rejected by the High Court, at least in the context of judgments and orders of federal courts declared by legislation to be "superior courts" of record: Bhardwaj per Kirby J at [108]; Residual Assco Group Ltd v 39 The question of invalidity and its consequences was considered by the High Court in Bhardwaj. The respondent, whose student visa was cancelled by a delegate of the Minister for Immigration and Multicultural Affairs applied to the Immigration Review Tribunal for a review of the decision. The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing. Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September. The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate. When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September. A new hearing date was arranged. The Tribunal heard the respondent's explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and, on 22 October 1998, revoked the cancellation. The issue in the appeal concerned the capacity of the Tribunal to proceed as it did thereby correcting its own error. The Minister contended that the power of the Tribunal to review the delegate's decision was spent after it made the decision in September. 43 Likewise, the error in Bhardwaj might be characterised as "flagrantly invalid" to use the language of Cooke J in Blenheim . In their joint judgment, Gaudron and Gummow JJ referred to the decision as one which "clearly involved a failure to exercise jurisdiction". Hayne J said that it was not seriously disputed in the Courts below or in the High Court that due to an oversight, the Tribunal had not given the respondent the opportunity to appear and give evidence and present arguments which s 360(1)(a) of the Migration Act 1958 (Cth) required he be given before the Tribunal made the September decision. This was the jurisdictional error involved. 46 In Bhardwaj Hayne J in the same vein said: If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. 47 Whether an administrative decision ought be presumed to be valid until set aside by a court will depend upon the particular case having regard always to the particular legislation under which the decision was made. 48 In my opinion, the presumption in this case cannot be displaced, merely at the instance of the Authority, in the face of factual questions, the resolution of which is necessary before determining the legal validity or otherwise of the several decisions to approve and to register. It is a fact that incorrect information was given to the Authority by Imtrade concerning the name and address of the manufacturer. Evergreen was a fictitious name. The factual question whether this affected induced or procured the several decisions is disputed. The Authority cannot determine that question for itself. 49 There is a further reason why curial disposition is necessary in this case. The presumption of validity is of particular importance here because the legislation involves a system of approvals and registration affecting innocent third parties. Approvals and registrations require by s 52(1) and (2) respectively to be published by the Authority, at least in the Gazette. The position under s 53 in respect to variations and s 55 in respect to suspensions or cancellations is the same. Approval and registration confers important rights upon third parties such as suppliers and purchasers of chemical products. It also protects them against criminal liability. For example, supply and possession with the intent to supply unapproved active constituents and unregistered chemical products are offences under the Code: ss 74 - 78 . Some offences are indictable offences: s 170 and may involve imprisonment: ss 162 , 163 . Conviction for offences under the Code may involve forfeiture of property: s 150. Part 7A of the Agricultural and Veterinary Chemicals (Administration) Act 1992 deals with importation, manufacture and export of chemicals. Under Part 7A , it is an offence to import into Australia an active constituent that has not been approved or a chemical product that is not registered: s 69B(1). The removal of the approvals and registrations by merely deleting these electronically has the very real potential to expose innocent third parties to prosecution as well as financial loss. The system of recorded approvals and registrations enables third parties to organise their affairs accordingly. 50 Compliance with the Code may also be the subject of injunctions, as well as action involving the execution of search warrants with Inspectors having powers of entry and seizure. 51 Furthermore, Part 2 , Div 5 of the Code empowers the Authority in certain circumstances to suspend or cancel approvals and registrations. Upon cancellation, the Authority must give written notice to interested and approved persons as defined in s 3 and to any other person it believes notice should be given: s 45A(1). After such notice, that person is taken to have been issued with a permit to "possess, have custody of, use or otherwise deal" with the constituent or product for a certain period of time: s 45A(5). A penalty applies for not acting in accordance with the instructions contained in the notice: s 45A(6), ss 74 - 78 . Accordingly, s 45A(5) protects, for a period of time, third parties affected by the cancellation. That protection is not available to them in the circumstances which presently exist. The Authority issued a recall notice to Imtrade under s 101 of the Code. I will consider this in more detail below. It is relevant in the present context to note that under Clause 2 of the Notice, which sets out various definitions, there is included the word "Permit". It is stated to mean a permit under Part 7 of the "Agvet Codes". There is however no operative clause in the Notice concerning permits. A consideration of Part 7 of the Code immediately demonstrates that its provisions are not apt to the circumstances of this case. 52 The observations of Hayne J at [143] and Kirby J at [122] in Bhardwaj are relevant to these third party considerations. 53 In my opinion, it is for this Court to decide the legal question involving as it does a preliminary factual enquiry. Indeed, the Authority seeks declarations from this Court that each approval and each registration was of no legal effect because each was affected, procured or induced by fraud. I will now consider those questions.


case_title: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501


case_text: There has been much controversy as to whether invalid administrative decisions may simply be ignored by the decision-maker without judicial determination. The debate between the absolute and relative invalidity schools of thought is far from resolved. There is a very useful discussion of these in a paper presented by Robert Orr and Robyn Briese at an AIAL Forum in October 2002: Don't Think Twice? Can Administrative Decision Making Change Their Mind? Absolute invalidity means that a decision-maker, and those affected by the invalid decision may just ignore it as if it had never been made. There is no requirement for judicial review to achieve this result. It does not constitute a decision. Support for it is found in Ouslow v R [1997] HCA 49 ; (1997) 192 CLR 69 per McHugh J and by some commentators: Sykes, Lanham, Tracey and Esser, General Principles of Administrative Law (4 th ed, Butterworths, 1997) at 447


case_text: Hayne J attached significance to whether the earlier decision would be set aside by the Federal Court or the High Court under s 75(v) of the Constitution at [147], concluding that where a decision would be set aside the power has not been exercised: [142], [155], [157]. It might seem that the practical application of such a test by a decision-maker raises its own self-evident difficulties, absent clear authority on all fours, with the circumstances of the case in question. However I do not take his Honour to have been referring to circumstances other than where there is a clear error involved as in his citation at [152] of Dixon J in Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 461 at 483 suggests. 41 How is invalidity to be determined? In the present case, alleged fraud amounting to jurisdictional error is involved. However the facts other than in respect to the variation of relevant particulars in respect of 47 existing valid registrations are in contest. Accordingly, it cannot be assumed that a Court would set aside the decisions of the Authority. Even in respect to the variations to the particulars, I do not think that it could be assumed that the provision of false particulars would lead a Court to declare the underlying valid registrations as thereby invalid. Posited in that way, it might be said that the necessary precondition to the right to ignore a decision, earlier made, has not been established and necessarily requires judicial determination of both fact and law on the question of validity.


case_text: Founded on that original jurisdiction, the applicant also seeks declarations pursuant to s 21(1) of the Federal Court of Australia Act 1976 (Cth) in the Court's accrued jurisdiction: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637 per Gummow J. Those declarations are to the effect that the approval of the active constituents and registration of the chemical products are of no legal effect because they were affected, procured, or induced by fraud.


case_title: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158


case_title: Residual Assco Group Ltd v Spalvins [2000] HCA 33 ; (2000) 202 CLR 629


case_title: R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26


case_text: The concept of invalidity involves questions of mixed fact and law. There may be evidentiary considerations. In Leung, Finkelstein J, drawing on observations by Lord Hoffman in R v Wicks [1997] UKHL 21 ; [1998] AC 92 at 115, said at 413: In other words the presumption of the validity of an administrative decision, to the extent that the presumption is to be made in a particular case, is no more than a rule of evidence pursuant to which a certain assumption will be made by a judge unless there is evidence which contradicts that assumption. As Kirby J said in Ousley at 1594 the presumption is merely a tool in the process of reasoning to a decision. See also Wigmore on Evidence (1981) vol 9, par 2491.


case_text: There is no evidence as to when the Authority asked for information concerning the name and address of the manufacturer in China. There is no evidence that Imtrade or its agents officers or employees was aware that such information was relevant to their application or putting it another way, that the information was material to the Authority's decision-making process. No reason has been proffered as to why this information was to be regarded as significant other than for the purpose of complying with Regs 15 and 16 which concern events after the relevant decisions were made: cf Sharples v O'Shea (unreported Supreme Court of Queensland, Atkinson J, 18 August 1999 at [66]. 65 The position in respect to the registration of chemical products is to the same effect: registration under s 20(2) is effected by the entry in the Register, amongst other things, of the particulars prescribed by Regulation 16. However this occurs only after the Authority decides to register under s 20(1). 66 It is no answer for Mr Suter to say in his affidavit sworn on 5 June 2008 at [14]: Unless the APVMA was satisfied that the second respondent had provided any information that the APVMA required, under section 14 of the Agvet Code, it could not grant the application for approval or registration. If the second respondent at the time it made its applications for approval of the active constituents and registration of chemical products had told the APVMA in its applications that the information concerning the identity of the manufacturer and site of manufacture to be entered into the Record and the Register respectively was false, or if the APVMA had been aware of the falsity of those particulars, the APVMA would not have granted those applications.


case_text: French J, at first instance , in SZFDE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 142 ; (2006) 154 FCR 365 at [74] said: The finding of fraud should have specified, in one place in the reasons what was said that was fraudulent, how it was fraudulent and how it was acted upon. This statement was approved by the High Court in that case on appeal: SZFDE at [41]. 56 The Authority, as part of its case on the issue of fraud, did not seek to prove what information it actually had received and relied upon in making its several decisions to approve and register under ss 19(1) ; 20(1). 57 Rather, senior counsel for the Authority referring to the statement of French J said: We know what was the fraud, we know how it was effected and how it was acted on. It was acted on by the making of the registration. The fact that it was operative ... flows from the legislation that it was operative ... 58 Accordingly, the case for the Authority is that the provision of the fictitious name and address of Evergreen being particulars prescribed under Regulations 15 and 16 necessarily leads, as a matter of inference, to the conclusion that each approval and registration was procured or induced by fraud. I do not agree. 59 Section 11(1)(a) and (b) together provide in effect that an application to the Authority under s 10 for approval of an active constituent or for registration of a chemical product must be made in writing in or to the effect of the approved form and contain, or be accompanied by, any information that the Authority requires. There is no evidence as to whether the various applications were made in or to the effect of the approved form. No reliance was placed upon the wording of the approved form. It was not referred to in submissions.


case_title: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64


case_title: Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103


case_text: Fraud requires to be strictly articulated and proved: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538D per Kirby P. A finding of fraud is not to be made lightly. I am not persuaded that the misinformation provided, at some point, by Imtrade to the Authority led to operative fraud, namely, that the Authority was actually induced by the provision of that information to make the decisions to approve and to register. I am not prepared to infer such fraud merely because Regs 15 and 16 require particulars of the name and address of the manufacturer to be recorded and registered. There are provisions in the Code which lend support to the conclusion that such information is not operative in the making of those decisions. 70 First, the provision of such particulars is not immediately referable to the objects of the Act or Code which as I have indicated centre upon concerns of safety and health of individuals, animals and the environment. The Authority points to paragraph (d) of the preamble to the Code which concerns the creation of a regulatory system that is open and accountable and which gives opportunity for public input with respect to the regulation of chemical and veterinary products. The particulars in question do not, I think, touch on that object. They are particulars which I earlier suggested may well be maintained in the confidential part of each of the Record and Register. Certainly, according to Mr James Suter who is acting CEO of the Authority, in his affidavit in support of the application sworn on 5 June 2008 at [9], the identity of the manufacturer and address of the site at which chemical products are manufactured are kept in the confidential part of the Register. 71 Second, incorrectly recorded or registered relevant particulars may be corrected in the Record and Register by the Authority under the provisions of s 26 of the Code. Furthermore, Part 2, Div 5 of the Code provides for suspension and cancellation of approval or registration. Under s 40(1), it is only if the relevant particulars or conditions for approval or registration cannot be varied to comply with the prescribed requirements that the approval or registration may be cancelled. The legislature has prescribed this approach for cases where the prescribed requirements are not complied with.


case_text: The principles are well established. A Court which is asked to grant leave to appeal from an interlocutory decision must first determine whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered. Secondly, it must consider whether substantial injustice would result if leave were refused, supposing the decision to be wrong, see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. Mr Etl has advanced no argument at all which suggests that his Honour made any error in the exercise of his discretion to refuse the adjournment sought on 17 December 2007. 10 Even if the draft notice of appeal is to be understood as an attempt to commence an appeal from the whole of his Honour's judgment which includes the affirmation of the sequestration order, no error is established, given that the making of those orders was not opposed and no argument was directed to his Honour designed to persuade him that the Registrar had erred in making the sequestration order. Accordingly, I am not persuaded that his Honour's decision is attended by any doubt and there is, therefore, no occasion for it to be reconsidered on appeal. 11 Moreover, no substantial injustice will result for Mr Etl in the event that leave is refused because he will remain free to pursue the inquiries which he has been undertaking with a view to obtaining fresh evidence which, if it is obtained, may enable him to make application to the Court for the sequestration order to be set aside. That is a matter for the future. 12 There is, therefore, nothing to be gained by enlarging time for the filing and serving of a notice of appeal. 13 The application should be dismissed. I will hear the parties on costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 5 May 2008 Counsel for Applicant: Applicant appeared in person Counsel for Respondent: Mr M Barrett Solicitor for Respondent: Kliger Partners Counsel for Trustee in Bankruptcy: Mr A Cox Solicitor for Trustee in Bankruptcy Pointon Partners Date of Hearing: 30 April 2008 Date of Judgment: 30 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/602.html


case_title: CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 , 52 IPR 42

case_text: are unquestionably instances where an argument has been permitted to be raised on appeal even though " unequivocally disclaimed " before the primary judge: e.g. CA Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at [30] to [35], 52 IPR 42 at 57 to 60. In the specific context of migration cases, leave to raise on appeal an argument abandoned before a Federal Magistrate may thus be permitted where (for example) there has been " an error of judgment by [an appellant's] counsel in abandoning a point which had originally been taken, and which was plainly viable ": White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [35] , [2000] FCA 232 ; 96 FCR 511 at 519; SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [36] , [2007] FCA 765 ; 96 ALD 70 at 77.


case_text: principles to be applied when exercising the discretion to entertain a ground different from those resolved by the trial judge are well settled. In Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. And in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).


case_text: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 , Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [21] Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. ... [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. [26] Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11] . And in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 , Heerey, Moore and Goldberg JJ also observed: [24] ... in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge. In the present proceeding the Federal Magistrate has in fact gone on to express brief " views " as to those arguments which were at least embraced by the Grounds set forth in the Application as initially filed. To that extent, this Court has had the benefit of the obiter views helpfully expressed by the Federal Magistrate. In addressing these further Grounds , the Federal Magistrate concluded (in summary form): (i) Procedural fairness : There was held to be no denial of procedural fairness. The now Appellant was said to have been given an opportunity of being heard in respect to the adverse conclusions as made by the Tribunal, and those adverse conclusions were held to have been made in reliance on the now Appellant's own evidence. (ii) Jurisdictional error : The Federal Magistrate observed that " no particulars " of this Ground were provided. To the extent that a challenge was made to the manner in which the Tribunal reached its state of " satisfaction ", the Federal Magistrate observed that the Tribunal was " not required to uncritically accept any, or all, of the applicant's claims ". (iii) The decision was "unjust" : In respect to this Ground the Federal Magistrate observed that no jurisdictional error was exposed as " [t]he Tribunal's findings were open to it on what was before it ". It was further observed that " [t]he Tribunal gave cogent reasons in support of its findings ". (iv) A failure to consider an aspect of the claim : This Ground was rejected by the Federal Magistrate upon the basis that the Tribunal did consider the claim advanced. " At best ", the Federal Magistrate observed, the Ground was " an assertion that the applicant meets the definition of "refugee" as set out in Article 1A(2) of the Refugees Convention ". (v) A failure to investigate and "actual bias" : The Federal Magistrate rejected a contention that there was a " general duty to inquire " and further concluded that there was " nothing before the Court to suggest bias, or the apprehension of bias, on the part of the Tribunal ...". No appellable error is exposed in these conclusions of the Federal Magistrate — even if leave is to be granted to raise the matter addressed as Grounds of Appeal . The final Ground of Appeal that the Appellant seeks to raise, Ground 7 in the Notice of Appeal , was not raised at any stage of the proceeding before the Federal Magistrate. The Ground does not make sense, even allowing for the fact it may have been drafted by someone whose native language is not English. For this reason, this Ground too has no prospects of success.


case_title: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 , 192 ALR 71

case_text: is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act : Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS [2008] FCA 499 at [30] per Lander J.


case_text: principles to be applied when exercising the discretion to entertain a ground different from those resolved by the trial judge are well settled. In Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. And in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.


case_title: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 , 147 FCR 51

case_text: the specific context of migration cases, in (for example) NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85, Madgwick J identified relevant questions to be addressed as including the following: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it be justly and practicably cured? If not, where, in all the circumstances, do the interests of justice lie? See also: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624 at [20] per Edmonds J. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 the grant of leave was thus addressed by reference to whether it was " expedient in the interests of justice " to grant leave. Kiefel, Weinberg and Stone JJ there concluded (citations omitted): [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so ... Their Honours referred to Coulton [1986] HCA 33 ; (1986) 162 CLR 1 and continued: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT [2005] FCAFC 134 at [163] , 147 FCR at 84 per Madgwick J (Conti J agreeing).


case_title: NBMB v Minister for Immigration and Citizenship [2008] FCA 149 , 100 ALD 118

case_text: of those factors relevant to an informed decision being made to abandon an argument in circumstances more apposite to civil litigation in which litigants are well-represented may assume little (if any) importance in an appeal such as the present. But some significance, it is considered, is nevertheless to be given to even an ill-informed unrepresented litigant apparently abandoning an argument otherwise available to him and thereafter seeking to resurrect on appeal the very same argument. The " interests of justice ", it is to be recalled, encompass the interests of both the unrepresented Appellant and the interests of the Respondents to an appeal. An unconstrained freedom on the part of an unrepresented Appellant to pursue all such arguments as may advance his own interests may well be inconsistent with the interests of a respondent or the more generally expressed public interest in the orderly administration of justice. An absence of prejudice claimed by a respondent may not be a sufficient reason to allow an argument to be raised for the first time on appeal: e.g. NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [23] to [33] [2008] FCA 149 ; , 100 ALD 118 at 128. In considering whether leave should be given to permit a new ground to be raised on appeal it is also relevant to give attention to the apparent merits of the argument sought to be raised.


case_title: SZBLY v Minister for Immigration and Citizenship [2007] FCA 765


case_text: the present proceeding, three considerations (at least) warrant attention, namely: to raise on appeal grounds not previously relied upon requires the leave of the Court; the role of this Court as an appellate court and the role that this Court plays in respect to any subsequent application that may be made to appeal to the High Court of Australia; and relevant to the grant or refusal of leave are various factors, including the fact that a ground sought to be raised was previously abandoned. Although these three considerations may be separately identified, consideration of any one of them may well overlap with consideration of another. Each of these considerations has also been repeatedly addressed in decisions of this Court — but some brief overview of these considerations is perhaps appropriate, lest the Appellant be left with the impression that his appeal has been dismissed on a " technicality " divorced from principle or merit. It is in that context that a fourth consideration should also be addressed, namely: the merit of the new grounds sought to be raised. The serious consequences that may attend a wrongful refusal of a protection visa may also be taken into account when determining whether it is expedient in the interests of justice that leave be given: SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] per Branson J. The serious consequences that attend the refusal of leave to raise a new ground in any appeal is, however, a matter warranting careful consideration and migration cases — it is considered — attract no different consideration: cf SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9] .


case_text: the specific context of migration cases, in (for example) NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] , [2005] FCAFC 134 ; 147 FCR 51 at 85, Madgwick J identified relevant questions to be addressed as including the following: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it be justly and practicably cured? If not, where, in all the circumstances, do the interests of justice lie? See also: SZFYK v Minister for Immigration and Multicultural Affairs [2007] FCA 624 at [20] per Edmonds J.


case_title: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578


case_text: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 , Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [21] Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. ... [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. [26] Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11] . There is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act : Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] , [2001] FCA 929 ; 192 ALR 71 at 86 per Gyles J; SZKMS [2008] FCA 499 at [30] per Lander J.


case_text: SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343 , Perram J reviewed some of these different outcomes as follows: [19] It is then useful to say something about the Tribunal's confusion of the Appellant's membership of the Lebanese forces with membership of the Lebanese Armed Forces. In the Appellant's amended application to the Federal Magistrates Court such a claim was expressly included. However, at the hearing in the Federal Magistrates Court the Appellant, who was represented by counsel, abandoned that argument. There may be some circumstances in which an appellate court will permit a party who has expressly abandoned a point at trial to raise it afresh on appeal. Gyles J would have permitted such a course in Dovuro v Wilkins [2000] FCA 1902 ; (2000) 105 FCR 476 at 527 [181] at least where the point involved no prejudice to the other party. Branson and Finkelstein JJ took the opposite view: 487 488 [38] and 508 509 [119] [120]. There may be something to be said for the view that where a point is expressly abandoned that the doctrine of waiver is relevant to the question: cf. Browne v Dunn (1894) 6 R 67 at 75 per Lord Halsbury, 80 per Lord Bowen; applied by the Privy Council in Yorkshire Insurance Co v Craine [1922] 2 AC 541 at 552 553 per Lords Buckmaster, Atkinson, Sumner, Parmoor and Wrenbury. If that were so, the question of whether an appellate court should entertain a fresh ground might not be relevant — there might be no ground to raise. However, whether the question is posed as one about the circumstances in which an appellate court should permit a point abandoned below to be resurrected on appeal, or, instead, one of waiver leading to the conclusion that the point no longer juridically exists — the outcome is the same in this case. I would not permit the abandoned ground to be entertained. It is not necessary in the present appeal to pursue His Honour's views as to the possible application of the doctrine of waiver.


case_text: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 , Lander J was confronted with an application for leave to amend a Notice of Appeal and an application to adduce further evidence, being the transcript of the proceeding before the Tribunal. In refusing leave to amend, His Honour referred to those principles relevant to the grant of leave to raise new grounds on appeal but further observed (in part): [21] Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. ... [24] The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. [25] Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. [26] Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. These observations of His Honour were recently endorsed by Spender J in SZMRD v Minister for Immigration and Citizenship [2009] FCA 598 at [11] .