You gotta admire their balls

Every now and then, you come across a case that is so amazing that you cannot do anything but sit back and stare in open mouthed admiration at the cojones displayed by the lawyers.

Trust Company of Australia Ltd v Commissioner of State Revenue [2007] VSC 451 (20 November 2007) is such a case.

Kiefel J has started with a bang

After putting her name on a joint unanimous judgment in Elliott v The Queen; Blessington v The Queen [2007] HCA 51 (8 November 2007) (a case regarding the confiscation of property that was in the joint name of a drug offender his spouse under the Victorian proceeds of crime legislation), Kiefel J seems to have found her voice by writing a judgment that all the High Court judges agreed with, except for Kirby J, who wrote his own concurring but separate opinion, just because he likes to be different.

The case is called Queensland Premier Mines Pty Ltd v French [2007] HCA 53 (15 November 2007). It an interesting case about whether the loan which is secured by a mortgage follows the mortgage upon assignment of the mortgage. Apparently, the answer is no. But I am not really sure how the mechanics of that is going to work out. More on this once I've given the judgment a close reading.

Yokohama Chinatown

People say that Japan's Chinese food doesn't really taste like Chinese food, and I have to say that this comment is probably more true than not when it comes to the run-of-the-mill "mom n pop" establishments dotted around the cityscape, but I have to say that I have been pleasantly surprised by the quality of Chinese food in the good Chinese restaurants.

There really isn't too much difference having yam cha (飲茶) at a good yam cha restaurant in Japan and a good yam cha restaurant anywhere else in the world. Each restaurant is different, and they do certain things better than others, but over-all, I would rate the good places with approval, except for the price. The prices here are truly mind-bloggling!

One example would be Hong Kong Tea House in Roppongi Hills. But that that is not the subject of this blog. Instead, the subject of this particular entry is the yam cha restaurant in Yokohama known as 萬珍樓點心舗 (manchinro tenshinpo).



What can I say, the dim sum served is generally pretty good, but I'm probably not keen to go back there again. Why? Because the food is really expensive for what you get. For example, the roast duck costs something like 1,200 Yen, and this is what you get for it:



Granted, the food was very nice, with the individual dishes ranging from excellent to decent, depending on the thing you ordered, but the prices were out of this world. Figure to spend about 650-750 Yen for normal dim sum with typically 3 dumplings per serving. I would avoid the shanghai dumplings (小籠包; shouronpo) though, coz quite frankly, they weren't that great and there are better and cheaper restaurants for that kind of stuff.

However, I really did enjoy the pig's trotters and some of the other dishes, and the restaurant claims to be entirely MSG free, so people who suffer reactions from MSG overdose would do well to eat there.

Summary: dim sim varying from between great to decent, but really expensive. There are better things I can spend my money on (like matsutake mushrooms and wagyu beef) than this.

Tsukumo Maru-kyuu Chiizu Ramen (Cheezy Goodness!)

After hearing so much about the weird and wonderful cheese ramen, I finally screwed up the courage to try it. The venue for this little piece of ramen exotica was 九十九ラーメン (tsukumo ramen) in Hiroo, about 5-10 minutes walk from Ebisu station.

What can I say? Despite my initial skepticism, I've definitely been converted into one of the cheezy ramen believers. The noodle itself isn't really that great ... I ordered the noodles to be done katame (basically the Japanese equivalent of 'al dente'), but it was nothing but adequate, nothing you couldn't get out of a good packet of instant noodles. But* the cheese, oh my god, the cheese! They grind a massive amount of cheese into a bowl of miso ramen, and it is delicious!

I loved it. Only problem was it was so filling that I was really struggling to finish it towards the end. First two thirds of it, I was happy as a pig in a poke, and the last third? Let's just say that it was a hot day, I was drenched in sweat, and I was praying for the end of the bowl so I could say ご馳走様です (gochisousamadesu)! (Literally, ご馳走様です means "it was an honourable feast", which is what the Japanese say to thank people after they have been fed a good meal.)

By the way, they have instructions in Japanese for how to eat the cheese ramen. Apparently, you're suppose to let the hot soup melt the cheese, and then eat the cheesy soupy mess altogether.

* yes, I know I'm not supposed to use 'but' at the start of the sentence, but in this case, I feel totally justified because it is a deliberate juxtaposition that clearly needs to be emphasized.

My Pig-out list when I get to Singapore

As you may or may not know, I was a Sporean before I became an Aussie citizen, and there's a very good chance that I will be back in Singapore for a few weeks at the end of the year. It shall be my mission in life to consume all, or as many as I possibly can, of the following things when I get there.



Food

1) Braised goose (teochew style)
2) Bah Ku Teh
3) Boon Tong Kee Chicken Rice
4) Bah chor mee
5) Or luak
6) Tulang
7) Lor mee
8) Kua chap
9) Satay
10) Prata
11) Stingray
12) Iggy's
13) Wan ton mee
14) Nasi goreng and mee goreng
15) Char kuay teow
16) Chau Hor Fun
17) Chai Tau Guay
18) Chwee Guay
19) Sum Pan (the hakka thing)
20) Swan Pan Zi
21) Ngor Hiang
22) Hainan Hawker Style Pork Cutlet
23) Chicken Curry
24) Nasi Bryani
25) Gar sou's Fish Head noodle soup
26) Har jeong chicken


Drinks

1) Milo peng
2) teh peng

Desserts

1) Cheng Tng + pulau hitam
2) Ice Kachang
3) orange indian noodle thingy
4) Horlicks ice-cream at Island Creamery
5) Durian
6) The really fucken nice tau huay near Selegie
7) Ah bo leng with peanut soup

Ramen Jiro (Meguro)

Continuing on my ramen kick, I went to the ramen jiro (ラーメン二郎) in Meguro today. Ramen Jiro is one of the most famous ramen chains in Tokyo (there's somewhere slightly in excess of twenty of them, and this particular one (located here) is one of the most famous.

That there was still a pretty long queue when I got there at around 2.50 p.m. on a Saturday is a testament to its popularity. After waiting for about 30 minutes, I finally got a seat and tried the yama ramen buta iri (山ラーメン　豚入り), or in English, mountain ramen with extra pork.

My advice to any first timer is not to even bother with the extra pork, and just eat the smallest portion. The pork itself is nice, very soft and fatty, which is how I like it, but unfortunately, incredibly salty. I could've done without the extra pork. The ramen itself comes with three possible toppings you can ask for: extra vegies (yasai; 野菜), garlic(ninniku; にんにく), and abura (extra fat; あぶら).

I went for the garlic and less than five minutes later, I was presented with a huge bowl of ramen. This is definitely not a ramen for the faint hearted, and I think any pork averse gaijin better stay well away from Jiro-style ramen. The soup is an incredibly rich and oily pork based soup. So rich and oily that it's just about impossible to drink it down. I myself--no stranger to porkiness and richness of soup--left about half a bowl of soup in the bowl; I had reached my limit and couldn't drink it down. The noodles are very thick and remind me a little bit of Chinese style hand made noodles in consistency.

Did I like it? Yes I did. But I must say, I think it seriously pushes the limits of richness, fattiness, porkiness and saltiness, all to the border of acceptability.

To sum up, this is definitely not a girly ramen. To the contrary, it's kinda like the Arnie of ramen. For the ramen jaded, this may be quite welcome and refreshing. Just don't come crying to me if you find it too overpowering for your liking.

Ramen in Japan

As you may or may not know, Ramen (ラーメン) is one of those quintessentially Japanese things that many people confuse as being somehow related to Chinese cuisine. But it is most definitely not!

But saying that Japanese ramen is Chinese food would be like calling Italian pasta "Chinese". Sure, the noodles may have been in some way inspired by the Chinese, but everything else is, well, Japanese.

Anyway, I've been on a bit of a ramen kick lately, and I've ticked off Ippudo (一風堂) and Afuri, both in Ebisu (恵比寿) from the list.

They are both very good, in different ways. Afuri ramen uses a shouyu (soy sauce) soup whilst Ippudo uses tonkotsu (pork bones) for its soup. However, in my opinion, they both aren't as nice as aoba ramen (at least, the one in nakano). The secret to aoba's ramen is that its soup is a blend of tonkotsu and soy sauce, so you get the best of both worlds, and the egg is perfectly runny (unlike Afuri's egg, which is a little on the overcooked side).

However, even aoba ramen isn't as nice as the miso based chasiu ramen I had in this shop in the original ramen alley in sapporo. That was truly AMAZING ramen.

Here's what the aoba ramen looks like:

What Tarot Card am I?

You are The Fool

The Fool is the card of infinite possibilities. The bag on the staff indicates that he has all he need to do or be anything he wants, he has only to stop and unpack. He is on his way to a brand new beginning. But the card carries a little bark of warning as well. Stop daydreaming and fantasising and watch your step, lest you fall and end up looking the fool.

What Tarot Card are You?
Take the Test to Find Out.

The mark of an expensive restaurant in Tokyo ...

Is the use of double-ply toilet paper in the toilets!

Very impressive, Nobu's and Sazanka (in Hotel Okura) are both to be commended for their extravagance.

Yes, not only will your tummy thank you, so will your bums!

Civil Rights Concerns

I am getting more and more worried about the quality of the reasoning displayed by our venerable High Court everyday. First, we have the absolute "gem" that is Farah Construction Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, a decision that made a total hash of the issues, but now, the High Court has handed down a decision I think has a significant impact on the administration of justice and the right to a fair trial.

In Libke v The Queen [2007] HCA 30, a majority of the HCA (Callinan and Kirby JJ dissenting in a joint judgment!) held that it is perfectly alright for the prosecutor in cross-examination (!!!!) to bully, harass, intimidate, and make disparaging remarks about an accused, make remarks about disbelieving the accused's answers, and to ask questions rhetorical questions of the accused and then not give him a chance to answer!

An example of the prosecutor's remarks:

"I put it to you your evidence is just a tissue of lies. That's what I'm putting to you, and I'm trying to work out just what it is that you're trying to tell us."

Heydon J (in a separate judgment) noted that many of the prosecutor's comments 'offended ... common law rules' and 'were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Q)[65]' (at [124]), were 'contrary to the rules of evidence' (at [125]), and yet, held along with the majority of the court that the trial was not unfair.

I can only echo the incredulous comments of Callinan and Kirby JJ, when they said they were unable to accept that the trial was not unfair, or that the accused had not been prejudiced:

38. In his reasons Heydon J too has demonstrated the entirely unsatisfactory nature of the conduct of the trial of the appellant involved in the approach taken both by the prosecutor[9] and the trial judge[10] during cross-examination. In effect, they complement our own. Merely to offer judicial disapprobation to discourage[11] unsatisfactory prosecutorial conduct of this kind in the future can be of no solace to an accused the subject of it.


39. We are unable to accept that the "very egregiousness of the conduct generated safeguards against the dangers inherent in it" or that the conduct of the prosecutor "was such as to attract sympathy to the accused"[12]. It is at least as likely that the jury, considering the way the prosecutor as a public official, and the judge as the controller of the trial acted, took their cue from the improper questions and comments, and apparent judicial acquiescence in them respectively, and inferred that they reflected a justified hostility to the appellant which they were bound to share. Clearly their verdict is more consistent with that reaction than with any sympathy.


40. The appellant does not seek sympathy from this Court, simply orders that uphold for him and for future cases like his the proper standards of prosecutorial conduct enforced by vigilant judicial supervision. We are quite unconvinced that the course of the cross-examination did not result in a substantial miscarriage of justice. The orders we propose give effect to that conclusion.

Miscarriage of justice and the "proviso"


41. Every member of the Court accepts at least that the prosecutor's comments were inappropriate and should not have been made[13], and that in making them he aligned himself personally with the prosecution case. Nor does any judge question that, even though the proceedings were adversarial, the trial judge could have intervened to check the persistently inappropriate commentary of the prosecutor.

There you go. If you want to get away with unfair conduct in a criminal trial, just make it so hostile and outrageous that you can claim that the conduct was not prejudicial to the accused because of its very hostility and outrageousness. Problem solved.

Patents and the High Court (Lockwood v Doric Part II)

Well, the High Court has allowed the Lockwood appeal in Lockwood v Doric [2007] HCA 21.

Nothing really new here. The Court says it is not its intention to develop the law in any way, and its just all application of existing principles.

Here's part of the judgment that makes me really sad (emphasis added):

[66] Although the recognition of the need to identify an "inventive idea" justifying a monopoly is not new in Australia[103], the developments in the United Kingdom, which emphasise the need to identify the "inventive concept" in terms of "problem and solution", have raised the threshold of inventiveness. This has been exemplified by a number of relevant English cases since 1977[104].

[67] Such developments were considered and distinguished in Alphapharm[105]. This Court rejected confining the question of obviousness to a "problem and solution" approach, particularly with a combination patent. This should not be misconstrued. The "problem and solution" approach[106] may overcome the difficulties of an ex post facto analysis of an invention, which may be unhelpful in resolving the question of obviousness[107]. However, it is worth repeating that the "problem and solution" approach may be particularly unfair to an inventor of a combination, or to an inventor of a simple solution[108], especially as a small amount of ingenuity can sustain a patent in Australia. Ingenuity may lie in an idea for overcoming a practical difficulty in circumstances where a difficulty with a product consisting of a known set of integers is common general knowledge[109]. This is a narrow but critical point if, as here, the circumstances are that no skilled person in the art called to give evidence had thought of a general idea or general method of solving a known difficulty with respect to a known product, as at the priority date.

Yes, I did know that the merest "scintilla" of invention is capable of sustaining a patent, but still, one could hope. Especially following the KSR judgment in SCOTUS!

Burge v Swarbrick again

Interesting thought about Burge v Swarbrick [2007] HCA 17. From the High Court's discussion of the legislative history and rationale behind the UK Parliament's decision to deprive industrial designs of copy right protection, it seems that when the UK equivalent of the Designs Act was enacted, it was Industry that wanted to keep copy right law out of manufacturing.

Clearly, they saw the potential for havoc that insanely long IP protection could wreak on the operation of the free market, and thought it would actually be better for industry and innovation not to have these restrictions.

In the same way, these IP laws, in granting these ridiculously long monopolies to rights holders, clearly have the potential to wreak havoc in the market for ideas.

HCA on the "Copyright/Designs Overlap"

Well well well, waddya know, the High Court of Australia has decided to come up with a sensible unanimous decision! In this very important decision, the HCA has cleared up significant confusion in the area of what is and is not copyrightable in the area of industrial designs.

The upshot of this case is that we now adopt the definition of "work of artistic craftsmanship" (WOAC) as formulated by Lord Simon of Glaisdale in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64; [1975] RPC 31 ('Hensher'). Unlike some of the more recent inexplicable High Court judgments, I think this to be a sensible decision.

The HCA has decided that the test to be used is a holistic one, and requires one to interpret the term 'artistic craftsmanship' as a single unit. Lord Simon basically says in Hensher that there is a continuum between works of craftsmanship that are merely functional in design (e.g., a blacksmith making a horseshoe), and something that is 'artistic' (e.g., the same blacksmith making incredible wrought iron gates for a palace). At the functional end where there is very little freedom for design choice in view of the design specs for a product, you cannot really say that there was sufficient artistic freedom for the work to be a WOAC. But on the other end, where there is considerable latitude and freedom in terms of design choice and an artist expresses himself (say, e.g., in a piece of Tiffany jewellery), then notwithstanding the fact that the work is mass produced, it is still a WOAC.

Why is this important and why is there so much confusion? Well, the confusion exists because the Copyright Act (CA) grants a copyright monopoly for an incredibly (and some might say unjustifiably) long period for qualifying subject matter, while the Designs Act only grants a monopoly to "designs" for a relatively short period of 10 years. The problem is trying to decide just where the "copyright" ends and "designs" begin.

The parliamentary response is typically confused, and the language is so horrible, only a mother would love it. What Parliament attempted to do in previous iterations of the act was to carve out certain areas of industrial endeavour where copyright law would not apply. The previous attempts utilized language that rendered copyright law inapplicable if some design that was otherwise copyrightable was applied to some sort of industrial use (read the old acts yourself if you would like to know more, I can't be bother to find the citations.

Say for example, you designed and made a lamp. If you only made one lamp and didn't mass produce it, you had copyright protection for, say, 50 years. If you mass produced it and registered it (by paying a fee and making the government some tidy sum of money) as a design under the old Designs Act, you got protection for only 16 years. But, if you didn't register it and mass produced it, you got NO PROTECTION at all, unless it qualifies as a "work of artistic craftsmanship", but not otherwise.

So, no registration and possibly 50 years if you went to court and things went your way (or nothing), or registration and only get 16 years. Class double (or triple) or nothing scenario if you were a betting man. And, registration costs money and fills the governmental coffers.

Confused yet? The CA and the Designs Act went through several different iterations, all unsatisfactory and filled with loopholes. In the next to last one, there was what was called a "plan to plan copying" loophole. It turns out that certain Federal Courts were willing to entertain the idea that while the article itself wasn't amenable to copyright protection, the underlying plan could be copyrighted.

So, for example, if I were a clothing designer, while the shirt I designed and mass produced could not be protected, and if unregistered could be freely duplicated, I could nevertheless sue any copycats for copyright infringement by arguing that the copycat must have reproduced my "plan" in order to reproduce the article, and therefore, he infringed my copyright. This was the approach taken by the Fed Court, and nyaaar, bye bye designs registrations, they just became redundant because suddenly, all industrials designs became potentially subject to copyright protection. (Every manufactured item has to come from a plan or blueprint, right?)

As you can imagine, this didn't go down well with Parliament. Where's it going to get revenue from, if not from design registration? (I think even this government wouldn't be greedy/stupid enough to require registration for every copyrightable creation -- can you imagine your starving garage band or painter having to pay to register copyright in their original work?) Its solution was to get rid of the loophole, and hence, the Copyright Act and New Designs Act in their current form.

As it now stands, s 10 CA defines 'artistic work' as:

"artistic work" means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

Section 77(2) CA basically says it is not an infringement to reproduce industrial designs that have not been registered and ss 77(1) and (1A) basically carves out the parts of copyright law that will no longer apply once you mass produce and sell something. The really important thing to note is that s 77(1)(a) says that s 77 applies when 'copyright subsists in an artistic work (other than a building or model of a building, or a work of artistic craftsmanship) ...'. Section 77(1A) is the section that closes the plan to plan copyright loophole referred to above.

From the--admittedly confusing--statutory language, we can distill the following rules:

1. If copyright subsists in something; and
2. It is mass produced; and
3. It is not a building, model of building or WOAC; and
4. If it is not registered as a design under the New Designs Act

You don't have any copyright protection at all.

But you can still gamble. The gamble is now this. You can refuse to register your design and claim that what you have is a WOAC. Enter the High Court case that is the subject of this post: Burge v Swarbrick [2007] HCA 17.

Swarbrick was the designer of a fast racing yatch. He claimed that the 'plug' (a kind of prototype from which the moulds for the hull or deck of the yacht were taken) for the yacht he created was a WOAC, and that Burge had taken his plug and used it to create moulds from which a copycat yacht was produced.

Swarbrick didn't register the design for his plug, so he either had no case, or he had to resort to copyright law by claiming that the plug was a WOAC.

In this case, I commend that judgment to you. It is clear and well written, and we can see that the HCA has decided that Swarbrick was functionally constrained and although aesthetic considerations were involved, they were not involved sufficiently for the plug to constitute a WOAC.

I had a custom shirt made at Isetan, and when I got it, I decided to take photos of the unboxing process for posterity. It's made out of a pure cotton fabric from Thomas Mason (obviously English!) that I chose myself.

In my not so humble opinion, opening the box at the moment of purchase is just as much--if not more--fun than using the item itself, and for this particular item, I had to wait an awfully long time for the box to arrive.

I would also note that the lighting in my room is not great, and in these photos, I had the devil of a time trying to get the colour to look anywhere near approximately correct ... curse my phototaking ineptitude!

It's actually not exactly the way I wanted it ... the collar's a little bit short, and I would not choose the same type of collar the next time round, but overall, it's still a pretty good shirt for the money I paid for it. :-)

This is a view of my office building, Izumi Garden Tower (泉ガアデンタワー) from my friend Will's house in Akasaka, about 5 minutes walk away.

Yes, I know, dangerous to live so close to work, and we did warn him ... but did he listen? Hell no! ;-)

Looked out of my office window and saw this beautiful sight. As a friend of mine would say--you know who you are!--you never tire of the view. Love the wet, dreary look. Very Bladerunner indeed.

Unfortunately, the rain spells DOOM for the Sakura, so good bye, my flowery white friends, it was good knowin' ya! Sakura owatta.

Sakuras outside my office in full bloom. What more can you say? Kinda makes ya glad to be in Tokyo, dunnit? Too bad it's only for such a short time, and too bad it's gonna be gone in a couple of days.

Abso-fricken-lutely amaaaaaazin' innit?
Watchin' Sakura on a wintry spring nite.
What could be better than that?

Why, food AND sakura (花見) of course!!!!
And that, we had in abundance!

Japanese Toilets

Check diz out ... amazing toilet technology. Comes with a bidet and bum-washer function, which is totallly, totally awesome! I love it to bits! The Japanese call it "WASHLET", or in Japlish, "WASHRETTO"

Intro

Oh hey! Another new attempt at broggingu!

Hey, ho, let's go!