Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd

[2013] FCA 520

FEDERAL COURT OF AUSTRALIA

Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2013] FCA 520

Citation:		Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd [2013] FCA 520
Parties:		HARCOURTS WA PTY LTD v ROY WESTON NOMINEES PTY LTD
File number:		SAD 224 of 2012
Judge:		GILMOUR J
Date of judgment:		28 March 2013
Cases cited:		Tepko Pty Limited v Water Board (2001) 206 CLR 1
Date of hearing:	28 March 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr T Duggan
Solicitor for the Applicant:	Minter Ellison Lawyers
Counsel for the Respondent:	Mr A Musgrave
Solicitor for the Respondent:	Elevation Legal

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 224 of 2012

BETWEEN:	HARCOURTS WA PTY LTD Applicant
AND:	ROY WESTON NOMINEES PTY LTD Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	28 MARCH 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.This matter be adjourned to 19 July 2013 at 9.30 am.

2.The respondent’s oral application for the trial of a preliminary issue is dismissed.

3.The respondent pay the applicant’s costs of the respondent’s application heard on 28 March 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 224 of 2012

BETWEEN:	HARCOURTS WA PTY LTD Applicant
AND:	ROY WESTON NOMINEES PTY LTD Respondent

JUDGE:	GILMOUR J
DATE:	28 MARCH 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I made orders in this matter on 28 March 2013, and gave ex tempore reasons at that time for so doing.  These are my reasons, edited but not such as to alter the substance of those reasons. 

2. A matter has been transferred from IP Australia to this Court, although it will require to be allocated as a new matter.  It is a matter between the same parties and which is related to the one which is presently before the Court.  The matter to which I refer is subject to correspondence from Minter Ellison Lawyers dated 25 March 2013 to the Registry of this Court under which it enclosed documents provided by IP Australia, for filing in connection with the present matter.

3. Counsel for the respondent (Roy Weston) has made an oral application that once the IP Australia matter is allocated a proceeding number in this Court that the subject matter of that proceeding be dealt with as a preliminary issue prior to the hearing determination of this present matter.  He contends that to do so would have the effect of limiting the amount of preparation for this matter, and to that extent, avoid certain duplication of effort both at the preparation stage but also trial.  He also submits that if what was formally the IP Australia matter was determined in his client’s favour, this would not only reduce the number of issues for determination in the present proceeding but would have an impact upon the surviving issues.

4. As I indicated to counsel in the course of argument, courts are wary in ordering the trial of a preliminary issue in a proceeding.  I was taken by counsel for the applicant (Harcourts) to the decision of the High Court in Tepko Pty Limited v Water Board (2001) 206 CLR 1 and particularly dicta from the judgment of Kirby and Callinan JJ.  I think that, as things presently stand, and on the information that I have, that this could not be described as a clear-cut case for the formulation of separate issues, which would necessarily be productive of the benefits that counsel advancing the application submits.

5. I have, for example, the counter submission on behalf of Harcourts that even in the event that Roy Weston were to be successful in respect to such a preliminary issue that the extent or limitation of the remaining issues and the relief that might be available in the main proceeding is a subject of argument. 

6. For these reasons, I would decline to order that the matter, the subject of the IP Australia proceeding, be determined as a preliminary issue. The respondent should pay the applicant’s costs of the application.  This matter will otherwise be adjourned.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       29 May 2013