Case note by Peter Heerey AM, QC, Tom Cordiner & Alan Nash – Australian entities that pay royalties to foreign-based licensors are required to withhold and remit to the Australian Tax Office a portion of that royalty, except to the extent an international tax agreement between Australia and the relevant country provides otherwise.
Tagged: Case Note
Case note by Peter Heerey AM, QC, Tom Cordiner & Alan Nash: correspondents for South Australia, Victoria and Western Australia
Stylis and Commissioner of Patents  AATA 796 28 October 2014
The Administrative Appeals Tribunal has refused an application to review a particular decision of the Commissioner of Patents on the basis that the AAT lacks jurisdiction to review it.
Bennett, Greenwood and Middleton JJ unanimously upheld the primary judge’s decision in Miles v Commissioner of Patents  FCA 1017, a case involving a lapsing patent application.
On an application to enforce a foreign arbitral award in the Federal Court, the respondent unsuccessfully sought to resist enforcement on the grounds that he had not received “proper notice” of the original arbitration proceeding.
The Victorian Court of Appeal has refused an application for leave to appeal against a decision of a trial judge to allow a plaintiff to amend his statement of claim in a group proceeding. The amended pleading relates to the interpretation of section 729 of the Corporations Act 2001 (claim for loss and damage arising from misleading or deceptive statements in a disclosure document).
ACCC v Informed Sources (Australia) Pty Ltd & Ors VID450/2014 – In August this year the ACCC launched Federal Court proceedings against retail petrol suppliers. The case is an important test of the application of Australia’s competition laws to ‘tacit collusion’. The ACCC has to date had minimal success in this area.
The Victorian Court of Appeal recently confirmed the importance of counsel’s duty to ensure serious allegations of misconduct are only made if reasonably justified by available material.
Attempted challenge by a financial services provider to a determination by the Financial Ombudsman Service under its terms of reference
The decision of the Victorian Court of Appeal in favour of the Financial Ombudsman Service Ltd (FOS) highlights the difficulties for financial services providers in trying to challenge decisions of FOS and the dispute resolution process under the terms of reference (TOR). The TOR operate as a binding contract with a finality clause in favour of FOS’ decisions and determinations.
The Victorian Court of Appeal has held that the 10 year limitation for commencing a building action in s. 134 of the Building Act 1993 (“Building Act”) is not confined to negligence claims, but also applies to actions founded in contract. The Court of Appeal also held that, on the facts of the case, no duty of care was owed by the building surveyor to the owner to prevent the type of loss suffered by the owner.
Can shares acquired with income below threshold amount to after-acquired property vesting in trustee under the Bankruptcy Act?
Examination of whether shares purchased from a bankrupt’s income below the threshold amount in respect of which he was required to make contributions to his trustee under Division 4B of Part 6 of the Bankruptcy Act 1966 (Cth) is within the meaning of “after acquired property” in s 58(1).
Non compliance of terms of settlement by a borrower in relation to repossession proceedings commenced by a lender
Co-authored by Kieran Hickie and Andrew Kirby. The decision of the Victorian Court of Appeal in favour of the NAB highlights some difficulties that might arise between lenders and recalcitrant borrowers in relation to terms of settlement for the compromise of repossession proceedings. The Court of Appeal’s decision demonstrates that borrowers who enter terms of settlement must comply with the conditions of the terms of settlement.
Alphapharm submitted that, although AstraZeneca had succeeded, it had no need to litigate at all because Alphapharm had made it clear that it would desist from conduct of the kind that was alleged to be in infringement of patents, until such time as the result of the appeal in Ranbaxy was known. Nevertheless AstraZeneca commenced proceedings against Alphapharm. AstraZeneca submitted that not only was it entitled to its costs in the normal course, but also that those costs should be taxed on the special basis for which section 19(2) of the Patents Act provides.
Federal Court rejects backdoor attempt to attack arbitral findings of fact on Public Policy/Natural Justice ground
The Full Court of the Federal Court has refused to set aside or resist enforcement of an international arbitral award on the basis of an allegation that there was a breach of natural justice in making certain findings of fact and that the award was therefore against Australian public policy.
Lisica v Commissioner of Patents  FCA 433 7 May 2014 – On appeal to the Court, the applicant did not seek to lead any expert evidence, which might have explained the area of the useful arts to which his invention would make a contribution or at least assist in understanding the language of the specification and the claims. Justice Jessup concluded that in those circumstances, the claim was neither clear nor succinct as required by s 40(3) of the Act: “As a statement marking out the area of the public monopoly which the applicant seeks, the claim falls well short of the standard of clarity required.” His Honour echoed the view expressed by the delegate that the applicant’s attempt to draft the specification and claims without professional assistance, had not helped him.