Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Cognate Amendment)

[2020] FCA 1041

FEDERAL COURT OF AUSTRALIA

Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Cognate Amendment) [2020] FCA 1041

File number:	NSD 1283 of 2017
Judge:	PERRAM J
Date of judgment:	14 July 2020
Date of publication of reasons:	21 July 2020
Catchwords:	PRACTICE AND PROCEDURE – application for leave to file Seventh Further Amended Defence – where proposed amendment concerns matters raised in late evidence – where leave to rely on late evidence previously refused
Cases cited:	Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Late Evidence) [2020] FCA 904 Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Second Adjournment) [2020] FCA 987
Date of hearing:	9 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Patents and associated Statutes
Category:	Catchwords
Number of paragraphs:	3
Counsel for the Applicant:	Mr C A Moore SC with Mr A R Lang
Solicitor for the Applicant:	Herbert Smith Freehills
Counsel for the Respondents:	Mr C Dimitriadis SC with Mr C Burgess and Mr J Cooke
Solicitor for the Respondents:	Shelston IP Lawyers

ORDERS

NSD 1283 of 2017

BETWEEN:

MOTOROLA SOLUTIONS, INC.

Applicant

AND:

HYTERA COMMUNICATIONS CORPORATION LTD

First Respondent

HYTERA COMMUNICATIONS (AUSTRALIA) PTY LTD ACN 165 879 701

Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	14 JULY 2020

THE COURT ORDERS THAT:

1.Paragraph 2 of the Respondents’ Interlocutory Application dated 2 July 2020 be dismissed with costs.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

PERRAM J:

1. By paragraph 2 of the Respondents’ Interlocutory Application dated 2 July 2020, which I dealt with in Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Second Adjournment) [2020] FCA 987, relief was also sought to permit the Respondents to amend their defence so as to rely upon the matters raised in Mr Grimmett’s affidavit affirmed 9 June 2020. The reason behind the timing of the application was because the Respondents’ solicitors took the view that an amendment was not necessary, as it lay within the ambit of the current pleading. I rejected that contention in the reasons for judgment I gave for not permitting Mr Grimmett’s affidavit to be used: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Late Evidence) [2020] FCA 904. The question then is whether the amendment should be allowed.

2. For the reasons which I gave for refusing to allow Mr Grimmett’s affidavit to be used, I also do not think it would be appropriate to permit the defence to be amended in a way which would reflect Mr Grimmett’s evidence. 

3. For that reason, I dismiss paragraph 2 of the Respondents’ Interlocutory Application with costs.

I certify that the preceding three (3) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       21 July 2020