Kabushi Kaisha Universal v Aristrocrat Leisure Industries

[1998] FCA 333

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 971 of 1997

BETWEEN:	KABUSHI KAISHA UNIVERSAL APPLICANT
AND:	ARISTROCRAT LEISURE INDUSTRIES PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	20 MARCH
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-tempore Judgment)

In this matter, by a Notice of Motion dated 11 March 1998, the applicant seeks leave to appeal from a judgment of Branson J of this Court pronounced on 4 March 1998.  The decision made by her Honour, on that occasion, was that a notice of motion pursuant to O 58 r 4(2) of the Federal Court Rules, for an extension of time within which an appeal from a decision of the Commissioner for Patents may be instituted, should be dismissed.  The decision of the Commissioner for Patents was given on 6 June 1997 and the time for lodging the appeal expired on 27 June 1997.  In fact, the notice of appeal was not lodged until five months later. 

Her Honour reserved decision on the question; considered the authorities and delivered a reasoned judgment in relation to the matter.  It is common ground, of course, that the application concerns the seeking of leave in relation to an interlocutory matter and also that it involves a challenge to the discretion exercised by her Honour in refusing the application for an extension of time.  The relevant principles have been cited to me and there is no real dispute about the applicable law.  The leading case on the question is the decision of the Full Court of Victoria in Niemann v Electronic Industries Limited [1978] VR 431. The two judgments referred to, in particular, are were those of McInerney and Murphy JJ.

McInerney J at 433 points out that the two limbs of the applicable test are, firstly; whether the question in issue is attended with sufficient doubt to warrant it being reconsidered on appeal and, secondly; whether substantial injustice will be caused to the applicant if the order of the judge is allowed to stand.  The two matters are not, of course, separate from one another but interact and must be considered together.  In the present case, it is said that, although interlocutory in form, the application concerns a refusal, which has the substantive effect of denying rights to the applicant.  It is, therefore, to be distinguished from the ordinary application, which is based on a simple matter of procedure and does not have the effect referred to above.

In my view, the decision of her Honour is neither attended with sufficient doubt to warrant its being reconsidered on appeal, nor am I satisfied that a refusal of an extension could lead to substantial injustice.  The principal factor which influenced her Honour, as I read the judgment, was the fact that the delay was of a period in the order of five months.  Her Honour took the view that part of that period could be explained but she was not satisfied that the balance of it was sufficiently explained.  She therefore decided that the delay was so gross as to justify a refusal of the application.  I see no error of principle in this conclusion.

Several matters have been raised by the applicant in relation to alleged mistakes by her Honour in finding certain facts.  I have given consideration to these and, in my view, they do not justify a contrary finding or raise sufficient doubt as to the decision which her Honour reached on the question.  In particular, there is simply no merit in a suggestion that matters proceed at a leisurely pace in relation to patent matters and therefore some special indulgence ought be accorded in such cases.  Accordingly, I am of the view that the application for leave to appeal should be dismissed and that the applicant for leave should pay the costs of the respondent in this application.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             20 March 1998

Counsel for the Applicant:	Mr T J Hancock
Solicitor for the Applicant:	Peter Cornelius & Partner
Counsel for the Respondent:	Mr A I  Tonking
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	20 March 1998
Date of Judgment:	20 March 1998