Courier Pete Pty Ltd v Metroll Queensland Pty Ltd

[2010] FCA 735

FEDERAL COURT OF AUSTRALIA

Courier Pete Pty Ltd v Metroll Queensland Pty Ltd [2010] FCA 735

Citation:		Courier Pete Pty Ltd v Metroll Queensland Pty Ltd [2010] FCA 735
Parties:		COURIER PETE PTY LTD ACN 105 219 323 v METROLL QUEENSLAND PTY LTD ACN 010 035 266 and METROLL QUEENSLAND PTY LTD ACN 010 035 266 v MARK NICHOLAS COLLYMORE
File number:		QUD 425 of  2008
Judge:		SPENDER J
Date of judgment:		15 July 2010
Catchwords:		INTELLECTUAL PROPERTY – registered designs revoked by Deputy Registrar of Designs under s 52 of the Designs Act 2003 (Cth) – cross appeal – whether designs created in the course of employment or under a contract with the respondent – who is the entitled person under s 13(1) of the Act.
Legislation:		Designs Act 2003 (Cth) ss 13(1), 52, 88
Cases cited:		Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425 referred to. Patchett v Sterling Engineering Co Ltd (1955) 72 RPC 50 (HC) referred to.
Date of hearing:	2, 3 & 4 March 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	59
Counsel for the Applicant and Cross-Respondent:	Mr S Cooper
Solicitor for the Applicant and Cross-Respondent:	Holding Redlich
Counsel for the Respondent and Cross-Appellant:	Dr D Eliades
Solicitor for the Respondent and Cross-Appellant:	Griffith Hack

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 425 of  2008

BETWEEN:

COURIER PETE PTY LTD ACN 105 219 323
Applicant

METROLL QUEENSLAND PTY LTD ACN 010 035 266
Cross-Appellant

AND:

METROLL QUEENSLAND PTY LTD ACN 010 035 266
Respondent

MARK NICHOLAS COLLYMORE
Cross-Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	15 JULY 2010
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1.Courier Pete Pty Ltd (by assignment from Collymore) was an entitled person at the time that Designs 312217 and 312218 were first registered.

THE COURT ORDERS THAT:

1.        The appeal by Courier Pete Pty Ltd be allowed.

2.The decision of the Deputy Registrar of Designs of 1 December 2008 to revoke Designs 312217 and 312218 be set aside.

3.        Designs 312217 and 312218 be restored to the Register.

4.        The cross appeal by Metroll Queensland Pty Ltd is dismissed.

5.The decision of the Deputy Registrar of Designs of 1 December 2008 that Metroll Queensland Pty Ltd was not an entitled person at the time Design 310528 was first registered is affirmed.

6.The respondent and cross-appellant to pay the costs of the applicant and cross- respondent of both the appeal and the cross appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 425 of  2008

BETWEEN:

COURIER PETE PTY LTD ACN 105 219 323
Applicant

METROLL QUEENSLAND PTY LTD ACN 010 035 266
Cross-Appellant

AND:

METROLL QUEENSLAND PTY LTD ACN 010 035 266
Respondent

MARK NICHOLAS COLLYMORE
Cross-Respondent

JUDGE:	SPENDER J
DATE:	15 JULY 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal and cross appeal from a decision of the Deputy Registrar of Designs given on 1 December 2008 whereby it was decided that designs 312217 and 312218 be revoked pursuant to s 52 of the Designs Act 2003 (Cth) (the Act).

2. The designs which are the subject of the appeal and cross appeal relate to rainwater tanks having modular construction.  The dispute is regarding ownership of the designs. Mr Collymore, the cross-respondent, claims that he came up with the first design at his home property, and the later designs were not created “in the course of employment, or in contract” with Metroll Queensland Pty Ltd (Metroll). At all material times, during the development of the designs, Mr Collymore was employed by the respondent.

3. That first design, design 310528, has plain (or non-corrugated) sides and was filed on 21 September 2006 and registered on 18 October 2006 in the name of Mark Nicholas Collymore.  Designs 312217 and 312218, which have corrugated sides, were filed on 27 October 2006 and registered on 3 January 2007 in the name of Courier Pete Pty Ltd as assignee of Mark Collymore.  Mark Collymore is the principal of Courier Pete Pty Ltd (Courier Pete).

4. The Notice of Appeal by Courier Pete was dated and filed on 22 December 2008.  The grounds of appeal in the applicant’s Notice of Appeal assert that the Deputy Registrar erred in:

   a)Finding that designs 312217 and 312218 were created by the designer, Mark Nicholas Collymore, in the course of employment, or under a contract, with the respondent;

   b)Finding that the applicant is not an ‘entitled person’ under section 13(1) of the Designs Act 2003 (Cth) with respect to designs 312217 and 312218;

   c)Finding that the conditions of section 52(2)(a) of the Designs Act 2003 (Cth) in respect to designs 312217 and 312218 are satisfied;

   d)Making a declaration under section 52(2) of the Designs Act 2003 (Cth) that the respondent was an ‘entitled person’ under section 13(1) of the Designs Act 2003 (Cth) with respect to designs 312217 and 312218;

   e)Revoking designs 312217 and 312218 under section 52(3) of the Designs Act 2003 (Cth).

5. An Amended Notice of Cross Appeal was dated and filed on 12 February 2009. 

6. In the cross appeal, the grounds of appeal assert that the Deputy Registrar erred in:

   (a)Finding that registered design 310528 was created by the Cross-Respondent in his own time, without association of his conditions of employment and without specific direction given by the Cross-Appellant;

   (b)Finding that the Cross-Appellant is not an ‘entitled person’ under section 13(1) of the Designs Act 2003 (Cth) with respect to registered design 310528;

   (c)Failing to find that the conditions of section 52(2)(a) of the Designs Act 2003 (Cth) in respect of registered design 310528 were satisfied;

   (d)Failing to make a declaration under section 52(2) of the Designs Act 2003 (Cth) that the Cross-Appellant is the ‘entitled person’ under section 13(1) of the Designs Act 2003 (Cth) with respect to registered design 310528;

   (e)Failing to revoke registered design 310528 under section 52(3) of the Designs Act 2003 (Cth);

   (f)       Failing to make an award of costs in the Cross-Appellant’s favour.

7. Section 13(1) of the Act provides:

   (1)      A person mentioned in any of the following paragraphs is entitled to be entered on the Register as the registered owner of a design that has not yet been registered:

   (a)       the person who created the design (the designer);

   (b)if the designer created the design in the course of employment, or under a contract, with another person – the other person, unless the designer and the other person have agreed to the contrary;

   …

8. Section 52(7) of the Act provides, in relation to a decision under s 52 of the Act by a Registrar on a revocation application that an original registered owner was not an “entitled person”:

   52       Procedures in relation to application

   …

   (7)An appeal lies to the Federal Court against a decision of the Registrar under this section.

9. The power for the Federal Court to hear an appeal is conferred by s 88 of the Act:

   88       Powers of Federal Court on hearing an appeal

   On hearing an appeal against a decision or direction of the Registrar, the Federal Court may do any one or more of the following:

   (a)       admit further evidence orally, or on affidavit or otherwise;

   (b)permit the examination and cross-examination of witnesses (including witnesses who gave evidence before the Registrar);

   (c)       order an issue of fact to be tried as it directs;
   (d)       affirm, reverse or vary the Registrar’s decision or direction;

   (e)give any judgment, or make any order, that, in all the circumstances, it thinks fit;

   (f)       order a party to pay costs to another party.

10. As the grounds of appeal and cross appeal make plain, the question is whether Mr Collymore was an “entitled person” under s 13(1) of the Act, with respect to each of designs 310528, 312217 and 312218.

11. The decision by the Deputy Registrar of Designs was given on 1 December 2008.  The finding of the Deputy Registrar was that the designs 312217 and 312218 were created by Mr Collymore in the course of employment or under a contract with Metroll, with the consequence that Mr Collymore was not an entitled person, and Metroll was.  However, the Deputy Registrar found that in respect of design 310528, Mr Collymore was an entitled person.  The decision is reported:  Collymore v Courier Pete Pty Ltd (2008) 79 IPR 608.

12. The Deputy Registrar said at [31], in respect of design 310528:

    I am satisfied that Mr Collymore authored design No 310528 in his own time; that there was nothing associated with his conditions of employment that created a general expectation that he create new designs for tanks; and there was no specific direction given by the employer that led to the development of this tank.  As a result I am satisfied that Metroll Queensland Pty Ltd is not an entitled person in relation to this design, and that Mark Collymore is an entitled person.

13. Metroll, in the cross appeal, takes issue with the findings of the Deputy Registrar that design 310528 was created by Mr Collymore in his own time and without association with his conditions of employment, and without specific direction given by the cross-appellant.

14. This matter was first before the Court on 6 February 2009, where I made a number of directions, which were directed to the matter being set down for trial in July 2009.

15. The parties fell behind in the timetable for the filing of material, despite numerous requests from the registry.

16. On 10 June 2009, Justice Collier made orders, the effect of which was to vacate the trial hearing dates and to provide a revised timetable.  On 17 August 2009, I directed that mediation before a Registrar or Deputy Registrar of the Court be conducted by 18 September 2009.

17. The matter went to mediation, but was unsuccessful.

18. Again, the parties fell behind in the revised timetable, and on 20 November 2009, I made further orders, amongst other things, setting the matter down for a three-day trial on 2 March 2010.

19. I accept the applicant’s submission that the approach of the Courts to the question whether an invention is created “in the course of employment” is to ask, “what was the employee employed to do?”  If the employee was employed to make or discover inventions of the type ultimately produced, then that is work for which the employer has paid and the employer is entitled to the benefit of the invention.  If the employee does not have any general duty to invent or duty of creativity, then the only basis upon which an invention can be said to have been created “in the course of employment” is if it has been created pursuant to a specific direction by the employer to undertake work which results in the creation of the invention.

20. It is common ground that although there was a written contract of employment between Metroll and Mr Collymore, it did not define with any precision the scope of Mr Collymore’s employment, nor did it deal with the issue of ownership of new designs.

21. In Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425, Branson J was concerned with whether the employer or the employee had the rights to a patent invented while the inventor was employed by his employer. The question in that case was whether Spencer Industries, the employer of Mr Collins, had a right enforceable against him to take the benefit of an invention that related to improvements in both the process and apparatus used for the retreading of tyres.

22. Although the Patents Act 1990 (Cth) does not contain an equivalent provision to s 13(1)(b) of the Act, the parties in Spencer Industries v Collins were in agreement that the relevant approach was that articulated in Patchett v Sterling Engineering Co Ltd (1955) 72 RPC 50 (HC) by Lord Reid at 58:

    … No doubt the respondent was the inventor and in the ordinary case the benefit of an invention belongs to the inventor.  But at the time when he made these inventions he was employed by the Appellant as their Chief Designer and it is, in my judgment, inherent in the legal relationship of master and servant that any product of the work which the servant is paid to do belongs to the master.  I can find neither principle nor authority for holding that this rule ceases to apply if a product of that work happens to be a patentable invention.  Of course, as the relationship of master and servant is constituted by contract, the parties can, if they choose, alter or vary the normal incidents of the relationship, but they can only do that by express agreement or by an agreement which can be implied from the facts of the case.

23. Branson J determined that there was no written employment contract which defined with precision the scope of Mr Collins’ employment by Spencer Industries.  Her Honour concluded at [79] that it was “plain that the position that Mr Collins held within Spencer Industries was principally a sales position”. 

24. In such circumstances, her Honour considered the evidence and found, at [81], that Mr Collins in fact contributed to the invention but that these activities fell outside his ordinary duties as sales manager but within the “residual area” in which it was open to Spencer Industries to direct him, whether expressly or implicitly, to use his technical skills to undertake additional duties.

25. Her Honour found, at [83], that it was no part of Mr Collins’ ongoing duties to invent products for Spencer Industries and noted that the evidence disclosed that “on more than one occasion [the employer’s CEO] reminded Mr Collins that his ongoing duties were exclusively sales related”.

26. In relation to the second consideration, her Honour determined, at [83], that the invention was not the outcome of a direction given to Mr Collins within the “residual area” in which he could be directed to perform tasks other than sales tasks.

27. Her Honour therefore concluded, at [83], that “[the] invention was not … the product of the work which Mr Collins was paid to do…”.

28. On the cross appeal in relation to the first design, the issues are whether, (a) Mr Collymore was solely responsible for creating the design; and (b) the first design was created in the course of Mr Collymore’s employment, in that it was created pursuant to either a general expectation of creativity as part of Mr Collymore’s employment, or a specific direction from Metroll.

29. On the appeal in relation to the second and third designs, the applicant does not accept that the designs were created pursuant to a specific direction from Metroll and therefore were created in the course of Mr Collymore’s employment. The applicant says that what occurred was a negotiation between Metroll and Mr Collymore about the basis upon which Mr Collymore would make his design available to Metroll. However, even if it were to be found that the prototype tanks were manufactured pursuant to a specific direction, the applicant maintains that there was an agreement between Metroll and Mr Collymore, either express or to be inferred from Metroll’s conduct, that Mr Collymore would retain ownership of the designs such that ownership did not pass to the employer under s 13(1)(b) of the Act.

30. Mr Collymore says he came up with the idea for the design for modular rainwater tanks as a result of watching one of his horses playing with a hose in the water trough on his property in late August 2006. As the horse was playing with the hose it folded back over the trough giving it a modular effect.  This caused Mr Collymore to think of the idea of modular tanks which could be connected together to increase the water storage capacity.

31. Mr Collymore says that he then sketched his idea and refined it over a period of 10 days in his own time after work.  Mr Collymore says that he did not consult or work with Metroll in developing the design.  The design did not have corrugated sides.

32. Mr Collymore applied for registration of the First Design on 21 September 2006.

33. This evidence is to be contrasted with that of Mr Harland.  Mr Harland said that Metroll had been making tanks of the straight sided curved corners design since late 2002, and in 2006 had started to focus more on this type of design.  Mr Harland said that the modular tanks which were photographed on 11 October 2006 were made during the period “a number of weeks” before that date.  He said that he thought of different configurations of tanks with flatter surfaces to form an almost squared cylinder which were similar to tanks made by Metroll in late 2002.  He said that he instructed the tank-making team at Metroll, consisting of Matt Stewart, George Thorne, Terry Kratzmann, Gary Gillis, Russell Morrison and Mr Collymore to reduce the radius of curvature of the tanks, and “in carrying out my instruction” produce a square modular tank. He said the half round tank design was produced by expansion of the radius by the same tank-making team. During the period of development, Mr Harland had Mr Collymore “playing around” at Metroll’s factory, placing the modular tanks in different positions resulting in a three section version of the earlier spacesaver tank.

34. Of the persons in the tank-making team identified by Mr Harland, none was called by Metroll to give corroborative evidence as to the design process that Mr Harland described.   Their absence is unexplained, and I infer that none of those witnesses would have provided evidence helpful to Metroll.

35. What is significant, it seems to me, is that, as the Deputy Registrar found, any work done at Metroll on modular tanks occurred only after Mr Collymore had applied to register the first design.

36. While Mr Harland’s evidence has general support from the sales manager at Metroll, Mr Joseph, that evidence in my view is entitled to little weight.  Mr Joseph’s ordinary work meant he was away from the day-to-day activities of the tank making team, and was personally not aware of what instructions or directions might have been given. 

37. In my opinion, the evolutionary design process involving numerous Metroll staff, of which Mr Harland speaks, is contradicted by the evidence of Mr Morrison.  Mr Morrison had been employed by Metroll for about 20 years, until about 20 June 2007.  For about the last eight years of that employment, he was the production manager/assistant manager of Metroll Toowoomba.

38. Mr Morrison says that in about mid-2006, when he asked Mr Collymore to become more involved in the tank making section, the only rainwater tanks that Metroll produced were the spacesaver tanks and the conventional round tanks.  Under cross-examination, Mr Morrison rejected the suggestion that he told Mr Harland about Mr Collymore’s design because the modular design was something Metroll had been working on for a while.  In re-examination, Mr Morrison said that Metroll never worked on the modular tank design until it was brought to his attention by Mr Collymore.

39. Mr Collymore says in his affidavit evidence that at no time was he asked to consider or develop new methods of construction for the tanks constructed by Metroll, nor was he advised that it was part of his role at Metroll to design water tanks.   In cross-examination, he repeatedly denied a suggestion that the tank-making section worked on new designs.

40. Mr Harland asserts, in relation to the duties of Mr Collymore, that from January 2001, Mr Collymore’s duties as a factory worker extended to operating machines for manufacture of metal roofing, cladding, structural steel and rainwater goods which included operating machines that make components for rainwater tanks and then assembling the tanks.  He says that from 29 June 2005, Mr Collymore was promoted to the position of factory foreman.  His role was as a hands-on factory foreman involved in all aspects of the factory’s operation, including supervising workers, all manufacturing processes, quality control, despatching and improvement of products and designs, including improving water tank products and designs.  Mr Harland says that Mr Collymore was responsible for the manufacture of the material for the tank bodies, and material for the tops and bases for the tanks in different parts of the factory.  He has responsibility to coordinate production of the tank components and to ensure that the tank factory was adequately supplied with components in order to meet orders.  Mr Collymore was directed to take a much greater role in the tank operations, and he was instructed by Mr Morrison to improve the design of the baffle configuration used in the Spacesaver tanks and find alternative solutions.

1. None of these matters, even if made out on the evidence, provide a sufficient basis to conclude that there was an ongoing expectation of creativity. 

2. I am satisfied Mr Collymore was never employed to design tanks for Metroll, and did not, in fact, design tanks during the course of his employment at Metroll.

3. Mr Morrison says only that he asked Mr Collymore to work on the baffling for the space saver tank.  To the extent that Mr Harland’s evidence seeks to go beyond this, by referring to an instruction to “find alternative solutions”, I reject it.  Mr Harland was not present when Mr Morrison instructed Mr Collymore in this regard.  Further, the suggestion that Mr Morrison instructed Mr Collymore to find “alternative solutions” to the baffling problems was not put to either Mr Collymore or to Mr Morrison.  Furthermore, even if there was a direction or instruction given by Mr Morrison to Mr Collymore to find “alternative solutions”, in my opinion, that was not a specific direction or instruction to undertake work which resulted in the design of modular tanks with corrugated sides.

4. I am quite satisfied that the first design was not created pursuant to any direction by Mr Morrison.  Mr Morrison’s evidence is that he gave instructions to Mr Collymore in mid-October 2006.  If that evidence be accepted, as I do, the first design filed for registration on 21 September 2006 could not have been created in response to that direction.  Importantly, Mr Morrison’s evidence on this point was not challenged in cross-examination.

5. It was submitted by Mr D Eliades, counsel for Metroll, that:

   … Collymore’s evidence is that in mid-October 2006, he met with Mr Morrison and Mr Harland and told them about his design.  And he [Mr Collymore] goes on to say that Mr Morrison told him to make one of his designs and [that] he went [on] to construct a sample tank [on the same day].  It’s Metroll’s case that this sample tank was made, in fact, by members of the tank making team, including Mr Collymore.

6. I have earlier referred to the fact that, while it was within the capacity of Metroll to call witnesses relevant to this claim by Metroll, none was called.  It is also, in my opinion, important to note that the direction on which Metroll relies is a direction that Mr Collymore was told to make one of his designs. 

7. It is in the context of the meetings between Mr Collymore, Mr Morrison, and Mr Harland, that Mr Collymore told them about “his design”.

8. I am satisfied that the design of the modular tanks with corrugated sides, which became designs 312217 and 312218, were authored by Mr Collymore.  Those designs were not produced as a result of a direction or instruction by either Mr Morrison or Mr Harland, whether that direction or instruction was to come up with a design for modular tanks with corrugated sides, or otherwise.

9. There are two passages in the cross-examination of Mr Harland that I regard as significant.  He was asked (p 85, lines 36-48 transcript 3.3.10)

   Mr Harland, you had a meeting with Mr Collymore and Mr Morrison in October 2006 when the modular tank design was discussed.  Do you recall that?---Yes, I do.

   And in that meeting, Mr Collymore was instructed either by you or Mr Morrison to construct some of the prototypes – some prototypes of the design; correct?---That’s correct.

   And I suggest to you that at that meeting, Mr Collymore told you, before he manufactured any of the modular tanks, that he would only produce those modular tanks as samples on the basis that he retained ownership of the design?---Absolutely not.

10. A little later:

    Mr Harland, there was also a  meeting which you attended with Mr Collymore and the sales representatives – Metroll’s sales representatives after the prototype modular tanks had been constructed.  Is that right?---That’s correct.

    And the purpose of that meeting was to show the sales representatives the new design and discuss how the tanks could be marketed.  Is that right?---That’s right.

    And I suggest that during that meeting, you said words to the effect of, “This is Nick’s new design and he can explain to you exactly how it works.”  Do you recall saying that?---I could have said words very similar to that.  The reason I would have said words to that was in the initial discussion with Russell Morrison and Nick, Russell called Nick into my office, and Russell said to me, “Nick has come up with a design.”  That, to me, is Nick, working in the tank factory as foreman of our factory, came up with a design that the whole team had been involved in, which is the way that designs were normally either upgraded, changed, and I always took it that when Nick was spoken of, it was the Metroll people, the team, not as in Nick’s personal design.
    (Emphasis added).

11. In circumstances where:

    ·Mr Harland does not challenge the evidence of Mr Collymore and Mr Morrison that, before the modular tanks were constructed, Mr Collymore told both Mr Morrison and Mr Harland that Mr Collymore proposed to charge a royalty for use of the modular design (although he denies that Mr Collymore told him that he would only produce the tanks as samples on the basis that he retained ownership of the design);

    ·Mr Harland does not otherwise address the subject of that meeting prior to the construction of the sample modular tanks; and

    ·Mr Harland’s assertion that he remained unaware of Mr Collymore’s claim to ownership of the designs until February 2007 is inherently unlikely and is contradicted by the evidence of both Mr Collymore and Mr Morrison as to what occurred at the meeting prior to the construction of the sample modular tanks,

12. I accept that Mr Collymore asserted ownership of the designs at the meeting before the modular tanks were constructed and informed Mr Harland that he would only build the tanks on the basis that he remained the owner of the modular designs.

13. I am not satisfied that there was an express agreement between Metroll and Mr Collymore at the meeting between Mr Harland, Mr Morrison and Mr Collymore before the sample modular tanks were constructed, that Mr Collymore would remain the owner of the modular designs.  I am satisfied, however, that in all the circumstances of the case, an agreement between Mr Collymore and Metroll that Mr Collymore would remain the owner of the designs should be inferred from Metroll’s conduct.

14. In determining whether to infer such an agreement the Court has to consider all the circumstances leading up to and subsequent to the date of the alleged contract, including the background facts, the setting in which negotiations took place, the negotiations, the facts objectively known to the parties, and what they said and did, or did not do.

15. I am satisfied that this condition was communicated to Mr Harland, and, indeed, was the basis on which Mr Collymore applied for registration, in respect of the designs incorporated in the photographs which led to the registration of designs 312217 and 312218.  Mr Harland did not demand that Mr Collymore employ his work on the modular design for the benefit of Metroll.  In my opinion, Mr Harland remained silent in the face of Mr Collymore’s statement that he would only make the tanks if he remained the owner of the design, and then stood by while Mr Collymore made the prototype tanks, on the basis of that understanding.  Mr Collymore then subsequently sought to register, and did register, those designs, as owned by Courier Pete as assignee of Mr Collymore.

16. The evidence of both Mr Collymore and Mr Morrison concerning Mr Collymore’s demands for royalty payments is entirely consistent with Metroll having agreed to Mr Collymore’s condition.

17. For those reasons, the appeal should be allowed and the decision of the Deputy Registrar to revoke designs 312217 and 312218 be set aside.  An order should be made restoring designs 312217 and 312218 to the Register, and a declaration should be made that Courier Pete (by assignment from Mr Collymore) was an entitled person at the time that designs 312217 and 312218 were first registered.

18. As earlier indicated, the cross-appeal by Metroll should be dismissed, and the decision of the Deputy Registrar that Metroll was not an entitled person at the time design of 310528 was first registered should be affirmed.

19. As to costs, Metroll should pay the costs of Mr Collymore and Courier Pete, both of the appeal and the cross-appeal.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:       15 July 2010