Herold v Seally (No 4)

[2017] FCA 957

FEDERAL COURT OF AUSTRALIA

Herold v Seally (No 4) [2017] FCA 957

File number:

NSD 2139 of 2016

Judge:

BROMWICH J

Date of judgment:

18 August 2017

Catchwords:

PRACTICE AND PROCEDURE – application for leave to file an amended statement of claim

Legislation:

Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law

Copyright Act 1968 (Cth), s 35

Cases cited:

Herold v Seally(No 2) [2017] FCA 543

Date of hearing:

Determined on the papers

Date of last submissions:

14 July 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Trade Marks

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Applicants:

Mr M Hall SC

Solicitor for the Applicants:

James Beatty & Associates

Counsel for the Respondents:

Mr T Di Francesco

Solicitor for the Respondents:

Phillips Ormonde Fitzpatrick Lawyers

ORDERS

NSD 2139 of 2016

BETWEEN:

LARS HEROLD

First Applicant

GREEN LIGHT GROUP PTE LTD (SINGAPORE COMPANY REGISTRATION NO 20121505Z)

Second Applicant

AND:

JONATHON SEALLY

First Respondent

PODWAY LTD

Second Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	18 AUGUST 2017

THE COURT ORDERS THAT:

1.The applicants be granted leave to file an amended statement of claim in the form provided by email to the associate to Justice Bromwich on 9 August 2017.

2.The respondents pay the applicants’ costs of and incidental to the application for leave to file the amended statement of claim.

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

REASONS FOR JUDGMENT

BROMWICH J:

1. This is a dispute about pleadings following my judgment in Herold v Seally(No 2) [2017] FCA 543, by which I refused both the applicants’ bid for an anti-suit injunction of proceedings in the Superior Court of California and the respondents’ bid for complete or partial setting aside of these proceedings. As outlined in those prior reasons, the parties to these proceedings are involved in a highly polarised dispute as to who should take the dominant credit for the development of a particular concept for driverless vehicles, and thereby be able to develop the concept commercially, principally overseas.

2. To the above overview may be added my general understanding of certain aspects of the case.  Reflecting no determination or agreement as to fact, it seems on the pleadings so far that there is a live dispute between the parties as to who owns the intellectual property to use, permit the use of, or restrain the use of, a set of PowerPoint slides and Excel spreadsheets in the form of slides, by which the driverless vehicles concept was described.  The two types of slides were apparently assembled as a single document, referred to by the parties as the “deck”.  It seems that a subset of that deck was then created using a selection of the slides to create a “pitch deck”, principally for the purposes of persuading potential investors to commit funds to the development of the concept. 

3. The question of who was responsible for…