Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd

Case [2013] NSWCA 392

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
Hearing dates:20 August 2013
Decision date: 26 November 2013
Before: Meagher JA at [1]; Barrett JA at [8]; Ward JA at [55]
Decision:

1. Direct that the parties show cause why, in the interests of justice (as referred to in s 7(7) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)), this Court should proceed to determine the summons seeking leave to appeal and, subject to the grant of leave, the appeal.

2. Direct that the parties do, within 21 days, file and serve such written submissions as they wish on that issue.

3. Direct that, unless a party notifies the Registrar in writing within 21 days that the party requires an opportunity to make oral submissions, that issue be determined on the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - courts - concurrent jurisdiction of different courts - transfer of proceedings under cross-vesting legislation

STATUTES - whether jurisdiction exercised by primary judge was with respect to a matter arising under the Patents Act in respect of which proceedings may under that Act be started in a prescribed court - whether Court of Appeal has jurisdiction to hear application for leave to appeal/appeal in present proceedings - operation of cross-vesting legislation
Legislation Cited: Copyright Act 1968 (Cth)
Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Patents Act 1990 (Cth)
Supreme Court Act 1970
Cases Cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
AFT Mining Electrics Pty Ltd v Bramco Electronics Pty Ltd [2012] NSWSC 1126
Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; (2000) 101 FCR 1; 175 ALR 566
Darling Downs Investment Pty Ltd v Ellwood (1988) 18 FCR 510
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575
Macchia v The Public Trustee [2008] WASCA 241: (2008) 251 ALR 385
Macteldir Pty Ltd v Dimovski [2005] FCA 1528; (2005) 226 ALR 773
Masterwood Pty Ltd v Far North Queensland Electricity Board [1999] 1 Qd R 345
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223
NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518
NEC Information Systems Australia Pty Ltd v Lockhart (1992) 36 FCR 258
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Pallas v Finlay (1985) 61 ALR 220
R…

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AGLC
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
Case
[2013] NSWCA 392
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Court of Appeal, Bramco Electronics Pty Ltd (the applicant) sought leave to appeal and appealed against an order made by the primary judge. The dispute concerned the operation of cross-vesting legislation and whether the Court of Appeal had jurisdiction to hear the application for leave to appeal and the subsequent appeal.

The central legal issue before the Court of Appeal was whether the jurisdiction exercised by the primary judge was in respect of a matter arising under the *Patents Act* in circumstances where proceedings could have been started in a prescribed court. This question directly impacted the Court of Appeal's own jurisdiction to entertain the appeal, given the provisions of the cross-vesting legislation.

The Court of Appeal, comprising Meagher, Barrett and Ward JJA, did not immediately determine the appeal. Instead, the Court directed the parties to show cause why, in the interests of justice as contemplated by section 7(7) of the *Jurisdiction of Courts (Cross-Vesting) Act 1987* (Cth), the Court should proceed to determine the summons seeking leave to appeal and, if leave were granted, the appeal itself. The parties were required to file written submissions on this jurisdictional issue within 21 days, with the Court indicating it would determine the matter on the papers unless oral submissions were requested.

Orders

Orders of the court

1. Direct that the parties show cause why, in the interests of justice (as referred to in s 7(7) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)), this Court should proceed to determine the summons seeking leave to appeal and, subject to the grant of leave, the appeal.

2. Direct that the parties do, within 21 days, file and serve such written submissions as they wish on that issue.

3. Direct that, unless a party notifies the Registrar in writing within 21 days that the party requires an opportunity to make oral submissions, that issue be determined on the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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