Heytrack (Australia) Pty Ltd v Jumbuck Campers Pty Ltd

[1999] FCA 370

FEDERAL COURT OF AUSTRALIA

Heytrack (Australia) Pty Ltd v Jumbuck Campers Pty Ltd

[1999] FCA 370

HEYTRACK (AUSTRALIA) PTY LTD v JUMBUCK CAMPERS PTY LTD
NO. VG 20 of 1998

HEEREY J
31 MARCH 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 20 of 1998

BETWEEN:

HEYTRACK (AUSTRALIA) PTY LTD
First Applicant

BOMBARDIER INC
Second Applicant

AND:

JUMBUCK CAMPERS PTY LTD
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

31 MARCH 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 20 of 1998

BETWEEN:

HEYTRACK (AUSTRALIA) PTY LTD
First Applicant

BOMBARDIER INC
Second Applicant

AND:

JUMBUCK CAMPERS PTY LTD
Respondent

JUDGE:	HEEREY J
DATE:	31 MARCH 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Going through the proposed amendments, 5(1) is not proposed, that’s the table setting out details of the various craft.  8(aa) is not opposed.  8(b) is not opposed, and I will allow those amendments.  8(d), (e) and (f), for reasons I have mentioned in argument, I consider serve no useful purpose and would only cause extra confusion and complication and I shall not allow those.  As to 8(ff), I think the case sought to be made in support of that amendment fails at the outset.  The patentee is the wholly-owned subsidiary of the second applicant, Bombardier, but of course that doesn’t make Bombardier the agent of the patentee or the patentee the agent of the Bombardier.

2. The fact that the patentee may have allowed the engine which embodies some of its patents to be sold by somebody for whom it is not legally responsible, doesn’t amount to any admission by Bombardier which is the relevant party for present purposes.  In any case, I am satisfied that at this late stage of the case it would be unfair to open up a potentially large and complicated area of factual dispute.  It seems that watercraft imported by the respondent have not all the same engines and there are different patents in respect of different components of the same engine, and amongst other things it is conceivable that there might be evidentiary disputes as to whether particular engines embodied particular claims and patents, or indeed, as to whether some patents were sufficiently significant.

3. For example, it may be that there was some patent of some component which was a relatively small part of the engine and it might be argued that in that circumstance the standing by of the patentee shouldn’t be taken as bearing any weight when one is considering whether the owner of the copyright gave a licence.  So for those reasons I think it would not be fair to the applicant nor conducive to the speedy and reasonable disposition of this matter to allow this amendment.  Generally as to the estoppel pleadings, that is 8(g), (h), (i), (j) and 8A, as I said in the argument I do not think they add anything to the case.

4. Counsel for the respondent frankly admitted that he could not serve a possible factual scenario in which his client might fail on implied licence but succeed on estoppel.  Moreover, there are some elements which at the moment are not pleaded such as reliance and the introduction of those into the case would create further unnecessary complicating factors.  As to 8B, I shall allow that but on the basis that it is relevant only to the damages phase of the proceeding should that arise.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             31 March 1999

Counsel for the Applicant:	Ms Strong
Solicitor for the Applicant:	Freehill Hollingdale & Page
Counsel for the Respondent:	Mr Webb
Solicitor for the Respondent:	Sprusons Solicitors
Date of Hearing:	17 March 1999
Date of Judgment:	31 March 1999