Hunter Douglas Inc v MarketMakers (Aust) Pty Ltd

[2010] FCA 751

FEDERAL COURT OF AUSTRALIA

Hunter Douglas Inc v MarketMakers (Aust) Pty Ltd [2010] FCA 751

Citation:		Hunter Douglas Inc v MarketMakers (Aust) Pty Ltd [2010] FCA 751
Parties:		HUNTER DOUGLAS INC and HUNTER DOUGLAS LIMITED (ACN 009 675 709) v MARKETMAKERS (AUST) PTY LTD (ACN 052 290 721), HARRY DESMOND PHIPPS and KYOUNG SOOK PHIPPS-LEE
File number:		NSD 714 of 2010
Judge:		YATES J
Date of judgment:		20 July 2010
Date of hearing:	15,16 July 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicants:	P W Flynn
Solicitor for the Applicants:	Shelston IP Lawyers
Counsel for the Respondents:	A Franklin SC and J S Cooke
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 714 of 2010

BETWEEN:

HUNTER DOUGLAS INC
First Applicant

HUNTER DOUGLAS LIMITED (ACN 009 675 709)
Second Applicant

AND:

MARKETMAKERS (AUST) PTY LTD (ACN 052 290 721)
First Respondent

HARRY DESMOND PHIPPS
Second Respondent

KYOUNG SOOK PHIPPS-LEE
Third Respondent

JUDGE:	YATES J
DATE OF ORDER:	20 JULY 2010
WHERE MADE:	SYDNEY

BY CONSENT THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 714 of 2010

BETWEEN:

HUNTER DOUGLAS INC
First Applicant

HUNTER DOUGLAS LIMITED (ACN 009 675 709)
Second Applicant

AND:

MARKETMAKERS (AUST) PTY LTD (ACN 052 290 721)
First Respondent

HARRY DESMOND PHIPPS
Second Respondent

KYOUNG SOOK PHIPPS-LEE
Third Respondent

JUDGE:	YATES J
DATE:	20 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from transcript)

1. At the request of the parties, this matter was listed for the hearing of an urgent application for an interlocutory injunction in relation to, amongst other things, infringement of Australian patent number 660583 for an invention entitled A WINDOW COVERING.  The first applicant is registered as the proprietor of that patent, and the second applicant is the Australian licensee of that patent.  The applicants allege that the first respondent has infringed certain claims of that patent by the importation, promotion and supply of a blind manufactured in Korea. 

2. The reason given for the urgency of the application was the fact that an exposition called Expo 2010 is to be held in Queensland on 21 to 23 July 2010, at which the first respondent proposes to exhibit the accused product.  The exposition is one that is held every three years under the auspices of the Blind Manufacturers’ Association of Australia, the peak association for the window furnishings industry in Australia, whose members include fabricators of window coverings and suppliers to fabricators. 

3. The application was heard on Thursday and Friday, 15 and 16 July 2010, with the Court sitting late on the afternoon of Friday, 16 July 2010.  The hearing concerned not only questions of infringement of the patent, but also questions touching upon the validity of the claims in suit.  There was an extensive body of evidence, including extensive expert evidence.  At the conclusion of the hearing on Friday afternoon, the matter was listed for judgment on the afternoon of Monday, 19 July 2010. 

4. When the matter was called on for judgment on Monday, 19 July 2010, an application was made by all parties that the giving of judgment be adjourned to this morning to enable instructions to be received overnight from senior group company officers associated with the applicants, who were in the United States of America.  I was told that those instructions related to negotiations that had taken place between the parties on what I then assumed to have been either the final resolution of the proceeding itself, or of at least the application for interlocutory relief.  Given the time of day, I acceded to that application.  This morning a further application for a short adjournment was made. 

5. The resources of the Court have been deployed in conducting a hearing of a controversy that has been, at all times, pressed on the Court as being urgent.  In the normal course it would be inappropriate, in my view, for the Court to participate in a course that would delay the timely giving of judgment after a matter has been heard, unless there are exceptional reasons to do so.  The fact that the parties wish to negotiate would not, in the normal course of events, constitute an exceptional reason. 

6. Parties to disputes should always be encouraged to seek a resolution of their claims.  However, courts, as public institutions involving the use of public resources, exist to determine disputes by the making of orders and the granting of other relief.  They do not exist as a forum for parties to ventilate their disputes, with a view to then considering how they might agree to resolve them.  The simple fact is that this matter was heard on an urgent basis, and the Court is in a position to deliver judgment as originally requested.  Nevertheless I was assured this morning in unequivocal terms that the dispute had been resolved between the parties on a final basis, and that the purpose of the adjournment was to allow the signing of documents as an antecedent step to the making of orders by consent that the proceedings be dismissed, and that there be no order as to costs.  On that basis I did not deliver judgment, but stood the matter down for a short time.  The parties have now presented me with a minute of the orders as foreshadowed.  I will make those orders. 

7. The orders of the Court are that the proceedings be dismissed and that there be no order as to costs.  I note that the orders are by consent. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        21 July 2010