Melbourne Law School - Theses
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ItemInherent patentability in Australian, United Kingdom and EPC law : a history( 2003)The purpose of this Thesis is to trace the history of judicial constructions of inherent patentability in the patent systems of Australia, the United Kingdom and, by operation of the Convention on the Grant of European Patents (`EPC'), the European Patent Organization. Inherently patentable subject matter is subject matter the characteristics of which are considered at law to make it inherently suitable for patent protection. Historically, the basic subject matter of patent protection has been the invention, and the concept of inherent patentability has been understood with reference to the distinction between inventions on one hand, and discoveries and other inherently noninventive subject matter on the other. The same distinction applies to varying degrees in contemporary Australian, United Kingdom, and EPC law by virtue of the express requirement in each of those jurisdictions for an invention that is patentable. It should be emphasised, however, that whilst the term `invention' has long been used to denote inherently patentable subject matter, the relevant legal concept is inherent patentability, and it is the development of that concept that has led legal understandings of the term `invention' rather than vice versa. The historical analysis of inherent patentability undertaken in this Thesis is presented in two Parts. The focus of the first Part (Chapters 1-3) is on Anglo-Australian law, meaning the law of the United Kingdom prior to its adoption of the EPC in 1977 and Australian law to date. The focus of the second Part (Chapters 4-6) is on the law of the European Patent Organization and the United Kingdom since its adoption of the EPC in 1977. In Chapter 1 I consider the origins of the common law invention and its development until 1623, when the Statute of Monopolies 1623 (Eng) was enacted and the foundations of the modern Australian and United Kingdom patent systems established. In Chapters 2 and 3 I analyze the development of inherent patentability within the Anglo-Australian patent system from commencement of the Statute of Monopolies to the present. In Chapter 4 I consider the origins of the model of inherent patentability adopted by the Contracting States of the EPC (including the United Kingdom) in the mid-1970s, and in Chapters 5 and 6 I analyze the development of inherent patentability in the hands of the United Kingdom courts and the European Patent Office. My purpose in writing this Thesis has not been to argue the case for the contemporary patent system's accommodation (or otherwise) of one or more classes of subject matter, but rather to explore and analyse the evolution of the threshold requirement of patentability in each of the jurisdictions considered. To that end I have focused primarily on the (reported and unreported) decisions of the courts, as well as selective decisions of patent administrators. In the case of the EPC I have relied on the decisions of the Boards of Appeal, with additional reference to decisions of the first instance departments of the European Patent Office where appropriate. I have also relied on background legislative material and related historical sources, and on the work of other academics in the area. A bibliography of the sources I have used appears after the main text. On matters of style and citation the Thesis complies with the Australian Guide to Legal Citation, with additional guidance, where necessary, from the 17th edition of The Bluebook: A Uniform System of Citation. A final point should be made regarding my citation of cases in Chapter 2. For reasons of brevity I have given only one citation for each of the cases referred to in that Chapter. Despite this, many of the cases are reported in several different nominate (that is, pre-1865 `named' English) reports, and many of those reports have since been reprinted in the English Reports or All England Reports Reprint and, most usefully, in the 11 volumes of Hayward's Patent Cases 1800-1883 (1987). With the assistance of those volumes I have compiled a more complete list of citations for the cases relied on, which is included in the bibliography.
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ItemAustralian contemporary art and the blindness of copyright law : a neo-romantic view( 2003)This paper explores the blindness of copyright to Australian contemporary art. Firstly, by reviewing the historical development of the term `artistic work' found in the Copyright Act 1968 (Cth) and its meaning in contemporary case law. Then, by examining what a definition of art might be through empirical research with artists and a review of current artistic practices in Australia. It concludes with a model for reform of the definition of `artistic work' that is based on a neo-romantic authorship approach to copyright. Historically, `art copyright' was a true artist's right advocated by artists, unlike literary copyright, which was advocated by publishers. During the 19th century, art copyright accommodated artistic practices, particularly when it moved from, a law about facsimile, mechanical reproduction technologies to a law about works of art. It took an expansive, authorship approach to a broad range of artistic expression. However, legislative reform through the 20th century confined the definition of `artistic work' to 19th century art techniques and objects by using exhaustive terminology in copyright law. This undermined the legal value of the intellectual processes undertaken by artists in the creation of artistic material. The review of the case law shows judicial determinations, among different categories of `artistic work', are inconsistent. There are some indications that judicial applications of aesthetic judgements continue to cloud the legal concept of art, notwithstanding a policy that asserted that aesthetic determinations were to be avoided. Together, this means that copyright law now operates to exclude much contemporary art. The research with artists suggests a more fluid, open, inclusive model of art copyright that both returns the focus of copyright back to the author, and avoids aesthetic judgements. The artists outlined at least four objectives that could be achieved by reform to the category of `artistic work' and associated terms `material form' and `originality'. Artists seek recognition and status through copyright law. Artists require some control over copying their work particularly where the copying is for commercial purposes. Artists seek the right to be acknowledged as authors of a work of art, and to control the integrity of the work. Thus, a broader view of art than that currently adopted in Australian copyright law is required to accommodate contemporary art practices. Consequently, a unique model is proposed that retains the concept of `artistic work' on historical grounds but also because it preserves status for artists. It provides an open, technology-neutral system for the assessment of art, devoid of aesthetic assessments through the use of guidelines, which are based on the research with artists to assist with determinations of what is `artistic'. The following revised legislative definition of `artistic work' is proposed: artistic work includes a painting, sculpture, drawing, print, photograph, work of architecture, work of craftsmanship or other work of art but does not include a circuit layout within the meaning of the Circuits Layouts Act 1989.
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ItemSimple in theory, not so in proof : how antitrust markets are established by evidence in federal court proceedings in Australia( 2002)Definition of a relevant market is the first and an essential step involved in determining whether or not there has been a contravention of certain of the substantive prohibitions under Part IV of the Trade Practices Act 1974 (Cth). The concept of a `market' for this purpose is based on settled, essentially economic, principles. However, proving the existence of a market, as a matter of evidence, in legal proceedings has been and remains a complex and uncertain exercise. The objectives of this thesis are to examine and critically evaluate the way in which the proof of markets under the Act has been handled in litigation before the Federal Court over the last 28 years. The primary sources for the research are the judgements that have been handed down by the Federal Court over this period in cases in which market definition has been a contested issue. While there is an abundance of literature on the relevant principles and their application in major cases, there has been no in-depth or systematic consideration of the issues of evidence and proof raised by this issue. For the purposes of examining the approach taken to the proof of a market, four principal categories of evidence are identified in the thesis - industry evidence, consumer evidence, quantitative evidence and expert opinion evidence. Issues of both form and substance that have arisen and the use that has been made of each category of evidence are explored in detail. For the purposes of evaluating the approach that has been taken to the proof of a market, a test of purposiveness is applied in the thesis. The question is posed, in other words, whether proof of the market has been approached with a view to identifying the existence (or otherwise) of close constraints on the commercial conduct of the firm(s) in question in the proceeding. It is concluded that, of the four categories of evidence examined, industry evidence has been the most effective in the sense that it has had the greatest impact on findings made concerning the relevant market. Consumer evidence has been bedevilled by concerns as to admissibility and weight and has been regarded as being of limited relevance in any event. Quantitative evidence has generally been unavailable and when available has proven unpersuasive. Overcoming initial reservations, there have been efforts to maximise the value derived from expert opinion evidence, particularly that of economists. Nevertheless, as some of these efforts themselves attest, such evidence has taken the form of submission more than it has of evidence and accordingly its role has been limited. The emphasis that has been placed on industry evidence is consistent with a purposive approach to market definition. It is this evidence that best enables a court to identify the sources and the extent of the constraints operating on the firm(s) in question. However, as is argued in this thesis, there are several important respects in which the analysis of industry evidence could and, indeed, should be more rigorously undertaken. Such rigour is required to ensure that markets are defined in a manner that reflects commercial realities and ultimately therefore to ensure that the substantive prohibitions under the Act are properly enforced.
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ItemThe reception and use of social policy information in the High Court of Australia( 2000)Social policy information is information that may assist a judge in determining the social or economic consequences of a law. Social policy information is used by judges in developing the law. There are three jurisprudential models that, arguably, could be used to describe the reception and use of social policy information by the High Court of Australia. Under the appropriate model for describing the current law - the Legal Sources Model - social policy information is not treated as a fact in issue, and is not subject to the common law rules of evidence or to section 144 of the Evidence Act 1995 (Cth). Under the Legal Sources Model, the reception and use of social policy information is characterised as an integral part of the judicial reasoning process in determining the content of the law and remains within the sole discretion of the judge, subject to various restrictions. These restrictions arise out of the requirements of judicial process (the parties must be given an opportunity to comment on contentious social policy information) and constitutional limitations (court processes must not resemble Parliamentary Inquiries). Case studies demonstrate that social policy information is often widely used without any acknowledgement of the legal basis on which it is used, without the source of information being identified in the written judgment, and without any apparent method for evaluating the reliability of the information. The current system for the reception and use of social policy information fails to satisfy Best Practice Standards in several important respects, including the following. First, there is no legal rule that defines the circumstances in which judges should obtain, through inquiry, social policy information they reasonably need. Secondly, there is no legal rule that facilitates an evaluation of social policy information by judges. Thirdly, the source of social policy information is not always mentioned in judgments. Fourthly, the law regarding the reception and use of social policy information is not certain. Experience in relevant overseas jurisdictions - the United States, Canada and New Zealand - suggests that these problems are not unique to Australia. Various reform proposals are suggested. These are designed to overcome the deficiencies in the current system and to take advantage of useful ideas for reform which have been proposed overseas. The key proposal is that the High Court should develop a protocol to assist judges in using social policy information.
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ItemThe interrelationship of private international law principles and international corporate insolvency( 2002)The search for the appropriate manner to conduct cross border insolvency administrations has continued for many years and taken many forms. Clearly these administrations involve assets, rights and creditors dispersed among jurisdictions with nations having no unilateral authority to administer aspects of the insolvency not located in their jurisdiction. My thesis initially outlines and reviews this search for the manner in which these administrations should be conducted explaining the theoretical approaches proposed as to the manner in which these administrations should be conducted and isolates the theory reflected in these current proposals. The conclusion drawn from this review is that generally a universalist approach is preferred, being a stance of co-operation with foreign administrations. This thesis tests this 'co-operative approach' by way of the international instruments proposed, the characterisation process presently utilised in determining the law governing rights/assets involved in these administrations and the trends evident in the most recent developments in this area i.e. the writings of the theorists, recent domestic legislative enactments and international solutions proposed. The Australian approach is accorded particular focus in this examination to both ascertain the approach it adopts and the solution it would be disposed to in any international solution. This examination reveals that despite all the work undertaken in this search for the appropriate manner in which to conduct these administrations, in reality despite an ostensibly universalist stance predominance is accorded to the protection of domestic and other commercial interests over any real co-operation being achieved. This thesis argues once insolvency intervenes it is appropriate for all rights to be determined in an insolvency context and details the factors making such characterisation appropriate. The final chapter of this thesis discusses how the present situation can move on to a more international solution. Building on the commonalities evident in the international instruments proposed, this thesis proposes the appropriate manner to conduct these administrations. This thesis then determines the manner in which this international solution should be implemented and discusses why in Australia's case the CA is not the appropriate vehicle to utilise for same.
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ItemA review of the federal investigatory powers of the Federal Commissioner of Taxation under sections 263 and 264 of the Income Tax Assessment Act 1936: a critical evaluation of the balance struck by the courts between the Commissioner's access powers and the rights of the individual( 2001)Section 264 of the Income Tax Assessment Act 1936 provides the Commissioner of Taxation with the power to seek information and documents. Section 263 provides the Commissioner with power to access premises. The present Commissioner has demonstrated a willingness to once again test the limits of section 264 before the Courts. The purpose of this paper is to examine where the balance of judicial authority has placed the boundaries on section 263 and more particularly 264 and whether any movements in those boundaries can be justified given the policies underlying section 264 and individual rights (such as the common law right of a client to legal professional privilege) or whether the decisions in respect of sections 264 and 263 are inconsistent with the approach of the Courts to investigatory powers in other contexts. In this context the paper examines a number of specific issues in respect of sections 264 and 263 including in particular the interaction between sections 263 and 264 and legal professional privilege. Until recently it had been judicially accepted that section 264 does not abrogate legal professional privilege. However in recent times the Commissioner has sought to challenge the scope of legal professional privilege in the context of section 264. The paper will evaluate recent decisions which suggest that section 264 abrogates legal professional privilege.
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ItemEmployment protection of casual employees( 2003)Summary of Argument: This paper aims to make a contribution to the literature by examining the employment protection of workers characterised by the Australian Bureau of Statistics as casual employees (' ABS casual employees'). In undertaking this examination, this paper seeks to compare the employment protection of ABS casual employees with that available to other employees. The examination commences by discussing the key approaches that courts and industrial tribunals have taken in determining whether a worker is a casual employee under a particular industrial instrument. It then analyses the employment protection of ABS casual employees in the following areas: • protection against unfair dismissal; • entitlement to notice at common law and statute; and • protection in the event of redundancies. It concludes that the employment protection of ABS casual employees is generally inferior to that available to other employees with a sub-group of such employees, namely, those engaged pursuant to a series of distinct contracts enjoying even more slender employment protection.
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ItemDrafting enforceable limitations of liability in construction contracts for major projects( 2002)Engineering and construction contractors working on large industrial plants (each a "Contractor" or, collectively, "Contractors") employ various strategies to define, limit and manage risks associated with their business activities. The cornerstone of any successful risk management philosophy must be excellence in the performance of the Contractor's work on each construction project (each a "Project"). When a Contractor meets or exceeds its customers' expectations, there will usually be minimal risk associated with the work. Given the inherent risk in any Project, Contractors also rely heavily on legal risk management strategies. Many Contractors manage risk through corporate architecture, using different operating companies to conduct their various business activities with the aim of limiting their liability to the assets of the corresponding operating company in the event of a catastrophic loss. This device requires great care in implementation, which is beyond the scope of this paper. The primary legal strategy for the managem.ent of risk utilised by Contractors, and the substance of this paper, is the formation of contracts with customers and major subcontractors and suppliers, including the interplay between such contractual provisions and corresponding insurance protection. This paper focuses on a Contractor's most significant exposures to financial liability in the context of contract formation and considers how a Contractor can minimise such exposures through carefully drafted provisions on limitations of liability, insurance and indemnities. In discussing the reasoning behind such provisions, the paper examines how many of the standard form construction contracts fail to meet the commercial objectives of a Contractor seeking to actively manage its risk. The paper also considers the enforceability of such provisions in the light of recent case law. It does not address other important issues such as regulatory risks and payment risks. This paper is written from the perspective of a Contractor managing risks through contract formation and insurance. (From Introduction)
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ItemSuperannuation: a public trust( 2002)Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.