Neurizon Pty Ltd (ACN 077 012 376) v Lth Consulting and Marketing Services Pty Ltd (ACN 061 363 139)

[2003] FCA 337

FEDERAL COURT OF AUSTRALIA

Neurizon Pty Ltd (ACN 077 012 376) v LTH Consulting and Marketing Services Pty Ltd (ACN 061 363 139) [2003] FCA 337

NEURIZON PTY LTD (ACN 077 012 376) v LTH CONSULTING AND MARKETING SERVICES PTY LTD (ACN 061 363 139) AND GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449) AND GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449) AND TAB QUEENSLAND LIMITED(ACN 085 691 738) AND NEURIZON PTY LTD (ACN 077 012 376)

Q 171 OF 2001

DOWSETT J
24 FEBRUARY 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 171 OF 2001

BETWEEN:

NEURIZON PTY LTD (ACN 077 012 376)
APPLICANT

AND:

LTH CONSULTING AND MARKETING SERVICES PTY LTD (ACN 061 363 139)
FIRST RESPONDENT

GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449)
SECOND RESPONDENT

GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449)
CROSS-APPLICANT

TAB QUEENSLAND LIMITED (ACN 085 691 738)
FIRST CROSS-RESPONDENT

NEURIZON PTY LTD (ACN 077 012 376)
SECOND CROSS-RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

24 FEBRUARY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application to amend the defence filed on 28 September 2001 is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 171 OF 2001

BETWEEN:

NEURIZON PTY LTD (ACN 077 012 376)
APPLICANT

AND:

LTH CONSULTING AND MARKETING SERVICES PTY LTD (ACN 061 363 139)
FIRST RESPONDENT

GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449)
SECOND RESPONDENT

GOLDEN CASKET LOTTERY CORPORATION LIMITED (ACN 078 785 449)
CROSS-APPLICANT

TAB QUEENSLAND LIMITED (ACN 085 691 738)
FIRST CROSS-RESPONDENT

NEURIZON PTY LTD (ACN 077 012 376)
SECOND CROSS-RESPONDENT

JUDGE:	DOWSETT J
DATE:	24 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. There is an application to amend the defence to permit reliance upon alleged non-compliance with par 40(2)(a) of the Patents Act 1990 (Cth) (the “Act”).  Obviously, the application comes very late, not only after the end of the trial, but after the publication of my reasons substantially disposing of the matters.  The trial, I should say, lasted for seven days, and took place in June of last year.  Judgment was published in December.  A matter of some curiosity in this case is that because of the practice of hearing issues relating to infringement and validity separately from the assessment of damages for infringement, the proceedings are not yet at an end.  I keep that matter in mind in considering the application for amendment.  I also keep in mind the fact that proceedings concerning the validity of a patent have significance beyond the interests of the parties thereto. 

2. The respondent has sought to explain the lateness of the application by saying that the amendment deals with something which emerged in the course of the trial and as a result of the way in which I have disposed of the matter.  However, generally speaking, one expects the parties to foresee the reasonable consequences of their arguments and those put against them and to make decisions as to the points which are to be raised and those which are to be abandoned at the trial.  It is not usually the case that parties are allowed to revisit their conduct of the proceedings once an outcome has emerged which is unfavourable to them.  The reason for this is the need for an end to litigation.  With all due respect to the respondent, this case offers an example of why such a policy is desirable.

3. Whilst it is true that the ultimate issues between the parties will not be finally resolved at this point in time because of the outstanding questions of infringement and damages, nonetheless the parties have conducted the proceedings to date upon the basis that certain matters would be finally disposed of at this stage.  In those circumstances, I see no reason why the respondent ought not be held to the decision that it made as to the conduct of its defence.

4. This is not simply a matter in which a party seeks to amend the pleadings to reflect a matter which was clearly litigated at the trial.  For reasons which I have previously given, it is not clear to me that the matter was litigated, nor is it clear that there would be no need for further evidence.  For me to reconsider the matter, I would certainly have to revisit substantial parts of the evidence.  In those circumstances, and having primary regard to the need to bring litigation to a close, I refuse the application to amend.

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

Associate:

Dated:             16 April 2003

Counsel for the Applicant and Second Cross Respondent:	Ms K E Downes
Solicitor for the Applicant and Second Cross Respondent:	Phillips Fox
Counsel for the First and Second Respondents and Cross-Applicant:	Mr R G Bain QC Mr S J Lee
Solicitor for the First and Second Respondents and Cross-Applicant:	Clarke and Kann
The First Cross-Respondent did not Appear.
Date of Hearing:	24 February 2003
Date of Judgment:	24 February 2003