Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864

FEDERAL COURT OF AUSTRALIA

Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864

CONSTITUTIONAL LAW – federal jurisdiction – whether the Federal Court had jurisdiction in an action (cross-vested from the Supreme Court of New South Wales under the invalid cross-vesting legislation) in which patent attorneys were sued for breach by negligence of their contract of retainer and in tort for negligence arising out of the retainer to advise and act upon an application for a patent – whether, though the matter was pleaded in contract and tort, it was one "arising under any laws made by the Parliament" within s 39B(1A) of the Judiciary Act and s 76(ii) of the Constitution – whether s 39B(1A) is available to support jurisdiction in respect of a claim made by a proceeding initiated before the subsection came into effect – application of the principle that a conferral of jurisdiction upon a court should be liberally construed – whether jurisdiction was conferred by a defence putting in issue the validity of the patent – what is a "matter" within s 76(ii) of the Constitution – the effect upon jurisdiction of the filing in a matter, originally in State jurisdiction, of a defence arising under a law made by the Parliament – discussion of whether such an issue has to be formally pleaded or whether it is sufficient that it come under serious examination by the Court as an issue in the proceeding – discussion of the proposition that the defence need not be correct provided it is pursued bona fide - accrued jurisdiction.

Judiciary Act 1903 (Cth), s 39B(1A)(c) Jurisdiction of Courts (Cross-vesting) Act 1987 (the NSW and the Cth) Patents Act 1952 (Cth), ss 40(1A)(b), 40(2), 100(1)(c) Patents Act 1990 (Cth) Re Wakim; Ex parte McNally (1999) 163 ALR 270 referred to Arnhem Land Aboriginal Land Trust v Minister for Mines and Energy for the Northern Territory (1997) 78 FCR 556 applied Walter John Bailey (No 1) Pty Ltd v Glass (1992) 36 FCR 290 referred to Knight v F P Special Assets Limited (1992) 174 CLR 178 applied The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 applied PMT partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 applied Oshlack v Richmond River Council (1998) 193 CLR 72 applied Australasian Memory Pty Limited v Brien [2000] HCA 30 applied Abebe v Commonwealth of Australia (1999) 162 ALR 1 referred to Moorgate Tobacco Company Limited v Philip Morris Limited (1980) 145 CLR 457 discussed L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 applied Felton v Mulligan (1971) 124 CLR 367 applied Bertran v Vanstone (1999) 94 FCR 404 referred to Fejo v Northern Territory of Australia (1998) 195 CLR 96 referred to Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (1997) 189 CLR 654 referred to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 referred to Stack v Coast Securities (No. 9) Proprietary Limited (1983) 154 CLR 261 referred to Troy v Wrigglesworth (1919) 26 CLR 305 applied Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 applied National Union of Workers v Davids Distribution Pty Ltd (1999) 165 ALR 595 applied Elders Ltd v Swinbank [2000] FCA 56 discussed Unilan Holdings Pty Limited v Kerin (1993) 44 FCR 481 referred to Hooper v Kirella Pty Ltd (1999) 167 ALR 358 at 370-371 referred to Philip Morris Incorporated v Adam P. Brown Male Fashions Proprietary Limited (1981) 148 CLR 457 discussed Fencott v Muller (1983) 152 CLR 570 referred to AUSTRALIAN SOLAR MESH SALES PTY LIMITED v NEVILLE JOHN ANDERSON & ORS N 562 OF 1999 WILCOX, BURCHETT and TAMBERLIN JJ SYDNEY 30 JUNE 2000