FEDERAL COURT OF AUSTRALIA
Norm Engineering Pty Ltd v Digga Australia Pty Ltd
[2005] FCA 1378Copyright Act 1968 (Cth)
EMI Limited and Others v Pandit (1975) 1 All ER 418
Evans Deakin Pty Ltd v Orekinetics Pty Ltd (2002) 2 Qd.R 345
Guidelines for the conduct of trials and pre-trial steps.
NORM ENGINEERING PTY LTD (ACN 010 799 943) v DIGGA AUSTRALIA PTY LTD (ACN 010 443 875)
QUD285 OF 2005
GREENWOOD J
23 SEPTEMBER 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD285 OF 2005
BETWEEN: NORM ENGINEERING PTY LTD (ACN 010 799 943)
APPLICANT
AND: DIGGA AUSTRALIA PTY LTD (ACN 010 443 875)
RESPONDENT
JUDGE:
GREENWOOD J
DATE OF ORDER:
23 SEPTEMBER 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.This motion be heard ex parte and the requirements of Order 19, Rule 2(1) of the Federal Court Rules be dispensed with;
2.The requirement for service under Order 17, Rule 2 of the Federal Court Rules be dispensed with;
3.The Applicant has leave to:
(a)read and file an affidavit of Robert James Robinson sworn 22 September 2005 and an affidavit of Sam Orr sworn 23 September 2005;
(b)read the Notice of Motion, the affidavit of Michael Wayne Gould and the affidavit of Sam Orr all filed 22 September 2005.
4.The said Notice of Motion and affidavits mentioned in the preceding order be placed on the court file in a sealed envelope which is not to be opened (without prior order of the court or a Registrar) until after service of these documents on the Solicitors for the Respondent as set out in this Order.
5.Mr Mike Gould and/or one other employee of Qantec McWilliam, Consulting Engineers, and no more than two employed solicitors (including the principle) of LeMass Solicitors be permitted (during business hours only) to:
(a)enter and remain on the Respondent’s premises located at 25 Christensen Street, Staplyton in the State of Queensland for the purpose of ascertaining whether a Norm 4 in 1 Bucket is present on those premises;
(b)enter and remain on the Respondent’s premises located at Octale Street, Yatala in the State of Queensland for the purpose of ascertaining a Nor 4 in 1 Bucket is present on those premises;
(c)inspect and observe the said bucket in order to determine whether the bucket appears to have been used as a template to reproduce in two or three dimensional form a version of it.
6.At least one hour prior to the execution of this Order, the Applicants serve on Messrs Bennett & Philp, Solicitors for the Respondent, copies of the following documents to enable the Respondent to have the benefit of independent legal advice should they so wish:
(a)this Order;
(b)the Notice of Motion filed in this application;
(c)all material filed in support of this application;
(d)a copy of any written submissions relied upon by the Applicant at the hearing of this application;
(e)a copy of the extempore reasons given in this matter on 23 September 2005, once available.
7.There be…
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- Case
- [2005] FCA 1378
- Decision Date
CaseChat Overview and Summary
The court found that the applicant had demonstrated urgency, as the bucket in question was likely to be removed from the premises if not located promptly. The applicant had also shown that it had a strong likelihood of success in proving that the respondent had used the bucket as a template for reproduction. The court was satisfied that the balance of convenience favoured granting the order, as the potential harm to the applicant if the bucket was removed outweighed any inconvenience to the respondent. The court also noted that the respondents would have the opportunity to seek independent legal advice before the order was executed, and that the order was limited in scope to the specific purpose of locating the bucket.
Accordingly, the court made the orders sought by the applicant, allowing its employees and solicitors to enter the specified premises to locate the bucket. The court also ordered that certain documents be served on the respondent's solicitors prior to the execution of the order, to allow for independent legal advice. The court reserved costs, indicating that they would be considered at a later stage.
In summary, the court granted the applicant's ex parte application for an order to allow its employees and solicitors to enter certain premises to locate a specific piece of equipment. The court found that the applicant had established the necessary urgency and balance of convenience to justify the order, and that the respondents would not suffer significant prejudice if the order was made. The court also noted that the respondents would have the opportunity to seek independent legal advice before the order was executed, and that the order was limited in scope to the specific purpose of locating the bucket.
Orders
Orders of the court
1. This motion be heard ex parte and the requirements of Order 19, Rule 2(1) of the Federal Court Rules be dispensed with;
2. The requirement for service under Order 17, Rule 2 of the Federal Court Rules be dispensed with;
3. The Applicant has leave to:
(a) read and file an affidavit of Robert James Robinson sworn 22 September 2005 and an affidavit of Sam Orr sworn 23 September 2005;
(b) read the Notice of Motion, the affidavit of Michael Wayne Gould and the affidavit of Sam Orr all filed 22 September 2005.
4. The said Notice of Motion and affidavits mentioned in the preceding order be placed on the court file in a sealed envelope which is not to be opened (without prior order of the court or a Registrar) until after service of these documents on the Solicitors for the Respondent as set out in this Order.
5. Mr Mike Gould and/or one other employee of Qantec McWilliam, Consulting Engineers, and no more than two employed solicitors (including the principle) of LeMass Solicitors be permitted (during business hours only) to:
(a) enter and remain on the Respondent’s premises located at 25 Christensen Street, Staplyton in the State of Queensland for the purpose of ascertaining whether a Norm 4 in 1 Bucket is present on those premises;
(b) enter and remain on the Respondent’s premises located at Octale Street, Yatala in the State of Queensland for the purpose of ascertaining a Nor 4 in 1 Bucket is present on those premises;
(c) inspect and observe the said bucket in order to determine whether the bucket appears to have been used as a template to reproduce in two or three dimensional form a version of it.
6. At least one hour prior to the execution of this Order, the Applicants serve on Messrs Bennett & Philp, Solicitors for the Respondent, copies of the following documents to enable the Respondent to have the benefit of independent legal advice should they so wish:
(a) this Order;
(b) the Notice of Motion filed in this application;
(c) all material filed in support of this application;
(d) a copy of any written submissions relied upon by the Applicant at the hearing of this application;
(e) a copy of the extempore reasons given in this matter on 23 September 2005, once available.
7. There be liberty to apply.
8. Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GREENWOOD J
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