Bitech Engineering v Garth Living Pty Ltd (No 2)

The case of Bitech Engineering v Garth Living Pty Ltd (No 2) involved Bitech Engineering, an Irish company and patentee of an Australian patent for an invention described as "Apparatus for simulating flames," seeking to amend its Statement of Claim to include additional types of alleged infringement by the respondents, Garth Living Pty Ltd and others. The respondents opposed the grant of leave to amend and the making of any consequential orders for discovery. The court was required to decide whether Bitech should be granted leave to amend its Statement of Claim to include additional types of infringement of its patent and whether consequential orders for further discovery should be made.

The court considered the principles articulated by the High Court in AON Risk Services Australia Ltd v Australian National University, which emphasised the discretionary nature of the power to grant leave to amend a pleading, taking into account factors such as substantial delay, wasted costs, the demands of case management, and the nature and importance of the amendment to the party applying for the amendment. The court also noted the potential prejudice to the respondents if the amendment was allowed, given the passage of time since the commencement of the proceedings and the lack of access to samples of the heaters and relevant documentation. Despite these considerations, the court found that Bitech had not acted tactically by delaying the inclusion of additional heaters and that the proposed amendments would not cause any prejudice to the respondents which could not be substantially remedied by an appropriate order for costs. Consequently, the court granted leave to the applicant to amend its Statement of Claim and made consequential orders for discovery, requiring the respondents to provide verified discovery of specified documents by certain dates. The applicant was also ordered to pay the respondents' costs occasioned by the making of the amendments.