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Federal court judgments

Every Issue

Cite as: September 2014 88 (09) LIJ, p.58

Competition law

Power of ACCC to arbitrate disputes in agreements granting access to the telecommunications system

In Telstra Corporation Limited v Vocus Fibre Pty Ltd [2014] FCAFC 77 (2 July 2014) a Full Court concluded the power given to the ACCC under cl 36(3) of Sch 1 of the Telecommunications Act 1977 (Cth) to arbitrate disputes between carriers as to access to the telecommunications network did not extend to the subject dispute as to the exercise of a power given by an agreement to set and vary charges.

Contracts

Liabilities after agreement ends – new points on appeal

In Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72 (17 June 2014) a Full Court concluded the liability of a party to an intellectual property licence agreement to exploit a patent to contribute to litigation to protect the patent continued after the term of the licence agreement ended. The Court considered when a point not raised at trial could be raised on appeal.

Insurance

Professional indemnity insurance – claims made policy – whether Commercial List response in NSW – Commercial List a “claim”

In Amlin Corporate Member Ltd v Austcorp Project No 20 Pty Ltd [2014] FCAFC 78 (30 June 2014) a Full Court concluded that a response filed and served in the NSW Commercial List was not a suit or civil proceeding “brought against” the insured for the purposes of the claims made policy because a response such as one alleging a set-off was not a claim in the ordinary sense.

Migration

Refugees – decision not to lift bar set by s46A Migration Act – procedural unfairness

In MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68 (27 June 2014) a Full Court concluded there was no procedural unfairness in a decision not to lift the bar imposed by s46A of the Migration Act 1958 (Cth) (preventing an application for a protection visa without the Minister’s consent) in relation to the appellant.

Migration

Refugee status – religious belief

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (4 July 2014) a Full Court considered authority as to what level of religious belief, commitment and understanding must be established before a person may be accepted as a refugee for that belief. Appeal dismissed.

Migration

Refugees – natural justice – failure of reviewer to consider submission – “cut and paste” decisions

In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014) a Full Court concluded an Independent Merits Reviewer had failed to afford the appellant natural justice by overlooking a submission. The Court considered the practice of a decision maker confronted with the same argument on a number of occasions “cutting and pasting” his own earlier decisions. Appeal allowed.

Patents

Inventive step

In Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2014] FCAFC 73 (19 June 2014) a Full Court reviewed authority as to when an invention is obvious to the hypothetical skilled addressee of the patent at the priority date.

Petroleum resource rent tax

Profit

In PTTEP Australasia (Ashmore Cartier) Pty Ltd v Commissioner of Taxation [2014] FCAFC 71 (13 June 2014) a Full Court concluded the primary judge had erred in analysing the effect a supplementary deed between the vendor and purchaser of oil had on the calculation of the price for s24(1)(b) of the Petroleum Resource Rent Tax Act (Cth).

Trade practices

Linked credit providers

In Quickfund (Australasia) Pty Limited v Airmark Consolidators Pty Limited [2014] FCAFC 70 (16 June 2014) the appellant finance companies rented office equipment from the respondents as a consequence of misleading statements from the suppliers of the equipment. On the appellants defaulting under the rental agreements, the respondents sued them and the directors who guaranteed them. In response the appellants claimed the respondents were “linked credit providers” within s73 of the Trade Practices Act 1974 (Cth) (as in 2009 and prior to the Competition and Consumer Act 2010 (Cth)) and responsible for the conduct of the suppliers under that and the Contracts Review Act 1980 (NSW). The Full Court concluded the primary judge correctly concluded that the introduction of s51AF of the Trade Practices Act by the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth) did not have the effect of making the “linked credit provider” provisions in s73 inapplicable to the rental contracts. The Full Court also concluded the guarantors were not precluded from claiming under the Contracts Review Act that the guarantee contracts were oppressive because the guarantee contracts were made in a “business” carried on by them (within s6(2)) as the relevant business was carried on by the companies they guaranteed. Appeal dismissed.

Trademarks

Infringement

In Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75 (20 June 2014) a Full Court considered whether use of a composite mark in the title to a web page in search results on trademark use amounted to use of a deceptively similar sign. l


THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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