FEDERAL COURT OF AUSTRALIA
Falkenhagen v West [2021] FCA 575
File number(s): QUD 508 of 2019 Judgment of: GREENWOOD J Date of judgment: 31 May 2021 Catchwords: PATENTS – consideration of an application for leave to amend the statement of claim – consideration of a corresponding application to strike out the existing statement of claim – consideration of the adequacy of the pleading of an agreement to develop an invention entitled “Hollow Borer Auger” Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2, s 236
Corporations Act 2001 (Cth), ss 131, 1071B
Federal Court of Australia Act 1976 (Cth), ss 37M, 37N and 37P
Patents Act 1990 (Cth), ss 3, 13, 14, 18, 29, 29A, 81, 113, 154, 187, 188, 189 and 191A
Cases cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Division: General Division Registry: Queensland National Practice Area: Intellectual Property Sub-area: Patents and associated statutes Number of paragraphs: 103 Date of hearing: 20 May 2021 Counsel for the Applicant: Mr A Wrenn Solicitor for the Applicant: Arnell & Cooper Lawyers Pty Ltd Counsel for the Respondents: Mr M Doyle Solicitor for the Respondents: B & G Law ORDERS
QUD 508 of 2019 BETWEEN: ERIC ALAN FALKENHAGEN
Applicant
AND: DAVE ARTHUR MICHAEL WEST
First Respondent
POLEMASTER PTY LTD ACN 621 808 106
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The application for leave to amend the statement of claim (and originating application) in the form of the documents described as Exhibit CPB‑2 to the affidavit of Christopher Phillip Blishen sworn 16 April 2021 as further amended by the proposed further changes to paragraphs 8(a), 25, 29 and 32(d) of Exhibit CPB‑2, is refused.
2.The applicant is directed under section 37P(3)(a) of the Federal Court of Australia Act 1976 (Cth) (the “Act”) to consider the reasons for judgment published in support of these orders with a view to formulating a further proposed amended statement of claim and filing and serving an affidavit by his solicitor exhibiting such a document for the further consideration of the Court under sections 37M, 37N and 37P of the Act.
3.The trial of the proceeding will be the subject of a separate hearing and determination of issues going to the formation of the agreement, its express and implied terms, the conduct of the respondents said to constitute breach, the character of the breach (if any), repudiation and a discharge, and any other conduct going to a contended liability on the part of the respondents arising out of the claims for relief sought by the applicant in the principal proceeding.
4.There will be no present order as to the statement of claim filed by the applicant on 19 August 2019 as the Court notes that the applicant concedes…
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CaseChat Overview and Summary
The court was required to decide whether the plaintiff should be granted leave to amend his statement of claim and whether the existing statement of claim should be struck out. The court also needed to consider the adequacy of the plaintiff's pleading of the agreement to develop the invention. In determining these issues, the court considered the principles of pleadings, the provisions of the Federal Court of Australia Act 1976, and the Federal Court Rules 2011.
The court found that the plaintiff's proposed amended statement of claim did not adequately address the deficiencies in the existing statement of claim. The court also found that the existing statement of claim was deficient in several respects, including the lack of particulars in relation to the agreement to develop the invention. The court therefore refused the application for leave to amend the statement of claim and directed the plaintiff to consider the reasons for judgment with a view to formulating a further proposed amended statement of claim. The court also directed that the trial of the proceeding will be the subject of a separate hearing and determination of issues. The court did not make any order as to the existing statement of claim as the plaintiff conceded that he no longer proposed to rely upon it.
The court's orders reflect its finding that the plaintiff's proposed amended statement of claim did not adequately address the deficiencies in the existing statement of claim. The court's refusal of the application for leave to amend the statement of claim and its direction for the plaintiff to consider the reasons for judgment with a view to formulating a further proposed amended statement of claim indicate that the court considers the matter to be complex and requires further consideration. The court's direction that the trial of the proceeding will be the subject of a separate hearing and determination of issues indicates that the court considers the dispute to be one that requires a full hearing and determination of the merits.
Orders
Orders of the court
1. The application for leave to amend the statement of claim (and originating application) in the form of the documents described as Exhibit CPB‑2 to the affidavit of Christopher Phillip Blishen sworn 16 April 2021 as further amended by the proposed further changes to paragraphs 8(a), 25, 29 and 32(d) of Exhibit CPB‑2, is refused.
2. The applicant is directed under section 37P(3)(a) of the Federal Court of Australia Act 1976 (Cth) (the “Act”) to consider the reasons for judgment published in support of these orders with a view to formulating a further proposed amended statement of claim and filing and serving an affidavit by his solicitor exhibiting such a document for the further consideration of the Court under sections 37M, 37N and 37P of the Act.
3. The trial of the proceeding will be the subject of a separate hearing and determination of issues going to the formation of the agreement, its express and implied terms, the conduct of the respondents said to constitute breach, the character of the breach (if any), repudiation and a discharge, and any other conduct going to a contended liability on the part of the respondents arising out of the claims for relief sought by the applicant in the principal proceeding.
4. There will be no present order as to the statement of claim filed by the applicant on 19 August 2019 as the Court notes that the applicant concedes that he no longer proposes to rely upon the originating application and statement of claim as filed but seeks to rely upon an amended statement of claim which will now be the subject of consideration as contemplated by Order 2.
5. The applicant pay the costs of the respondents of and incidental to the application.
6. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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