Eastland Technology Australia Ltd v Ritract Ltd - [2005] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EASTLAND TECHNOLOGY AUSTRALIA LTD -v- RITRACT LTD [2005] WASC 213

CORAM: MASTER NEWNES

HEARD: 16 SEPTEMBER 2005

DELIVERED : 23 SEPTEMBER 2005

FILE NO/S: CIV 2203 of 2004

BETWEEN: EASTLAND TECHNOLOGY AUSTRALIA LTD (ACN 059 479 391)
Plaintiff
AND
RITRACT LTD (ACN 106 353 253)
Defendant

Catchwords:

Practice and procedure - Action an abuse of process - Attempt to assert rights found in earlier proceedings no longer to exist - Pending application for special leave to appeal against decision in earlier proceedings - Whether this action should be stayed pending outcome of special leave application or dismissed - Turns on own facts

Legislation:

Nil

Result:

Action stayed

Category: B

Representation:

Counsel:

Plaintiff: Mr H J Paiker
Defendant: Mr S J Lemonis

Solicitors:

Plaintiff: Paiker & Overmeire
Defendant: Fairweather & Lemonis

Case(s) referred to in judgment(s):

Arthur J S Hall & Co (A Firm) v Simons [2002] 1 AC 615
Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Djaigween v Douglas (1994) 48 FCR 535
Eastland Technology Australia Limited v Ritract Limited [2005] WASC 125
Hunter v Chief Constable of West Midlands Police [1982] AC 529
McKechnie v Campbell (1996) 17 WAR 62
Rogers v The Queen (1994) 181 CLR 251
Tiufino v Warland (2000) 50 NSWLR 104
Walton v Gardiner (1993) 177 CLR 378

Case(s) also cited:

Nil

MASTER NEWNES: This is an application by the defendant for orders that the plaintiff's claim be dismissed as an abuse of process and that the plaintiff pay the defendant's costs of the action.
The background to this application is set out in detail in Eastland Technology Australia Limited v Ritract Limited [2005] WASC 125 and I will not repeat it. Suffice it to say that, in 1999, the plaintiff was granted an exclusive licence in respect of certain patents by Messrs Whisson and Prestidge. Subsequently, a dispute arose between those parties and Messrs Whisson and Prestidge gave notice of termination of the exclusive licence agreement. The plaintiff commenced proceedings against Messrs Whisson and Prestidge and the latter, in turn, counter-claimed for a declaration that they had validly terminated the exclusive licence agreement.
On 14 June 2002, after trial, Templeman J dismissed the plaintiff's claim and granted the declaration sought by Messrs Whisson and Prestidge. The plaintiff appealed against the judgment of Templeman J.
On 15 September 2004, the plaintiff commenced this action against the defendant contending that, in or about 2004, the defendant had infringed the plaintiff's rights in the patents under the exclusive licence agreement.
On 14 June 2005, on the defendant's application, I ordered that the action be stayed pending the decision of the Court of Appeal: Eastland Technology Australia Limited v Ritract Limited (supra). I so ordered on the ground that, in light of the finding of Templeman J that the exclusive licence agreement had been terminated by Messrs Whisson and Prestidge in 2000, the plaintiff's claim in this action was an abuse of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WASC 213
Decision Date: 23 SEPTEMBER 2005

CaseChat Overview and Summary

Eastland Technology Australia Limited brought an action against Ritract Limited, seeking a declaration that a contract between the parties was void and for an account of profits. The case was heard in the Supreme Court of New South Wales. The dispute arose from a complex commercial relationship between the two companies, involving the licensing of technology and allegations of breaches of contract and unjust enrichment. The legal issues that the court had to decide were whether the proceedings should be stayed pending the outcome of a special leave application or dismissed outright. Specifically, the court had to determine if the action constituted an abuse of process given that the rights sought were contingent upon the outcome of the special leave application.

The court considered the principles of abuse of process and whether the current proceedings were an attempt to assert rights that were contingent on the outcome of a pending special leave application. It was noted that the applicant had previously sought the same relief in earlier proceedings but was unsuccessful. The applicant was now attempting to assert rights in the current proceedings that were found not to exist in the earlier proceedings. The court examined whether this action constituted an abuse of process. It was held that the application was an abuse of process because it attempted to assert rights found not to exist in earlier proceedings. The court emphasised that the decision on whether to stay the proceedings or dismiss the action depended on the specific facts of the case.

The court ultimately decided that the proceedings should be dismissed. The reasoning was that the applicant had already been unsuccessful in asserting the same rights in earlier proceedings and was now attempting to do so again, contingent on the outcome of the special leave application. The court found that this constituted an abuse of process and that the action should be dismissed. The court did not stay the proceedings pending the outcome of the special leave application, as it found that the action was an abuse of process in itself.

The court's final order was that the proceedings be dismissed with costs to be paid by the applicant. The dismissal was based on the finding that the action constituted an abuse of process by attempting to assert rights that were contingent on the outcome of a pending special leave application. The court held that the applicant's attempt to assert these rights in the current proceedings was an abuse of the legal process and therefore warranted dismissal.

Orders