Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd (No 2) - [2013] FCA 347

FEDERAL COURT OF AUSTRALIA
Embertec Pty Limited v Energy Efficient Technologies Pty Limited (No 2)
[2013] FCA 347

Citation: Embertec Pty Limited v Energy Efficient Technologies Pty Limited (No 2) [2013] FCA 347

Parties:
EMBERTEC PTY LIMITED (ACN 110 367 809) v ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439) and STAVROS PAPPAS; ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439) v EMBERTEC PTY LIMITED (ACN 110 367 809)

EMBERTEC PTY LIMITED (ACN 110 367 809) v AUSPRO GROUP PTY LTD (ACN 123 950 327) and VARSHA SHAH

File numbers: NSD 1167 of 2012
NSD 30 of 2013

Judge: FOSTER J

Date of judgment: 16 April 2013

Catchwords: PRACTICE AND PROCEDURE – allegation of apprehended bias (in the sense of pre-judgment) on the part of a single judge who heard and determined an application for interlocutory injunctive relief to restrain an alleged infringement of the applicant’s registered innovation patent – in his judgment, the judge expressed some views concerning the strength of the respondents’ case for invalidity of the patent based on a lack of fair basis – relevant principles discussed – whether recusal required

Cases cited: Embertec Pty Limited v Energy Efficient Technologies Pty Limited (2013) 99 IPR 103 related
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 applied
Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 applied
Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 applied
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
Johnson v Johnson (2000) 201 CLR 488 applied
Livesey v New South Wales Bar Association (1983) 151 CLR 288 applied
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 applied
Re Watson; Ex parte Armstrong (1976) 136 CLR 248 applied
Re JRL; Ex parte CJL (1986) 161 CLR 342 applied
Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 applied
Vakauta v Kelly (1989) 167 CLR 568 applied

Date of hearing: 10 April 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 27

Counsel for the Applicant: Mr DK Catterns QC and Mr AC Harding

Solicitor for the Applicant: DibbsBarker

Counsel for the Respondents: Mr FM Douglas QC and Dr CS Ward

Solicitor for the Respondents: Fox Tucker Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1167 of 2012

BETWEEN:
EMBERTEC PTY LIMITED (ACN 110 367 809)
Applicant

AND:
ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
First Respondent

STAVROS PAPPAS
Second Respondent

AND BETWEEN:
ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
Cross-Claimant

AND:
EMBERTEC PTY LIMITED (ACN 110 367 809)
Cross-Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

16 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.This proceeding be allocated to the docket of a judge other than Foster J.
2.The costs of the applicant’s Interlocutory Application filed on 7 March 2013 be costs in the proceeding.

Note: Entry of orders is dealt with in…

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: [2013] FCA 347
Decision Date

CaseChat Overview and Summary

Embertec Pty Limited, the owner of an Australian Innovation Patent, sought interlocutory injunctive relief against Energy Efficient Technologies Pty Limited (EETECH) and Auspro Group Pty Limited (Auspro) for alleged infringement of the patent. The primary dispute was whether EETECH and Auspro were infringing the patent and whether the patent was invalid. The case was heard in the Federal Court of Australia by Justice Foster. The key legal issues involved determining whether Justice Foster should recuse himself from the case due to an apprehension of bias based on pre-judgment.

Justice Foster had previously made certain remarks regarding the strength of EETECH’s case for invalidity of the patent, particularly concerning the concept of 'fair basis'. Embertec argued that these remarks suggested Justice Foster had prejudged the matter, thus potentially biasing the final hearing of the case. The court examined the principles of apprehended bias, focusing on whether a fair-minded lay observer might reasonably suspect that Justice Foster had prejudged the case. The court found that the remarks made by Justice Foster, while preliminary, could be perceived as definitive views that might not change upon further evidence at trial. Considering the special circumstances and the substantial nature of Embertec’s concern, Justice Foster decided to recuse himself from the trial to maintain public confidence in the judicial process.

Accordingly, the court ordered that the proceeding be allocated to another judge and that the costs of the interlocutory application be costs in the proceeding. This decision underscores the importance of perceived impartiality in legal proceedings and the threshold for recusal based on apprehended bias.

Orders