IPC Global Pty Ltd v Pavetest Pty Ltd

[2016] FCA 500

FEDERAL COURT OF AUSTRALIA

IPC Global Pty Ltd v Pavetest Pty Ltd [2016] FCA 500

File number:

NSD 1203 of 2015

Judge:

MOSHINSKY J

Date of judgment:

11 May 2016

Catchwords:

PRACTICE AND PROCEDURE – application for leave to amend pleadings – whether leave should be granted to plead copyright infringement in relation to applicant’s firmware

Legislation:

Federal Court Rules 2011, rules 8.21(1), 16.53

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2

Date of hearing:

Determined on the papers

Date of last submissions:

4 May 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Copyright and Industrial Designs

Category:

Catchwords

Number of paragraphs:

36

Counsel for the Applicant:

R Cobden SC with E Bathurst

Solicitor for the Applicant:

Bird & Bird

Counsel for the Respondents:

CP Thompson

Solicitor for the Respondents:

Stephens Lawyers & Consultants

ORDERS

NSD 1203 of 2015

BETWEEN:

IPC GLOBAL PTY LTD (ACN 168 265 156)

Applicant

AND:

PAVETEST PTY LTD (ACN 160 146 083)

First Respondent

CON SINADINOS

Second Respondent

ALAN JOHN FEELEY (and another named in the Schedule)

Third Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

11 MAY 2016

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to file and serve a further amended originating application in the form of Annexure ‘A’ to the short minutes of orders attached to its written submissions dated 22 April 2016.

2.Leave be granted to the applicant to file and serve a further amended statement of claim in the form of Annexure ‘B’ to the short minutes of orders attached to its written submissions dated 22 April 2016.

3.By 4.00 pm on 18 May 2016, the first respondent make discovery of the following documents pursuant to rule 20.14 of the Federal Court Rules 2011:

All historic and current versions of the source code for the software embodied in the firmware of the CDAS (as defined in paragraphs 11 and 12 of the affidavit of Jane Margaret Frances Owen sworn 24 February 2016).

4.Inspection of such documents pursuant to paragraph 3 be subject to the Confidentiality Undertakings comprising Annexure ‘D’ to the orders made on 25 November 2015, and those documents be treated as “Pavetest Source Code” as defined in the Confidentiality Undertakings comprising Annexure ‘D’ to the orders made on 25 November 2015.

5.The applicant pay the respondents’ costs of the applicant’s interlocutory application dated 24 February 2016 (including the amended interlocutory application dated 11 April 2016) and any costs thrown away by reason on the amendments referred to in paragraphs 1 and 2 above.

6.The proceeding be listed for directions on a date to be fixed.

Note:    Entry of orders is dealt with…