Park, T. v Enercon Pty Ltd
[1990] FCA 242
•1 Jun 1990
ORIGINAL
AUSTRALIA m IN TEE FEDERAL COURT OF GENERAL DIVISION
BETWEEN: TEOHPSON PARK Applicant
AND : ENERCON PTY LTD First Respondent
AND : GREGORY WEEAT Second
Corn: Einfeld J
| DATE : 1 June 1990 | RECEIVE[ |
| - | - 6 J U N 1 9 9 0 |
| FEDERAL COURT C |
| PLACE: | Brisbane | AUSTRALIA |
| PRlNClPAL REGISTRY |
REASONS FOR JUDGMENT
.\lJ/ 0 \p
The applicant Thompson Park was born in South Africa on 27 October 1935. He grew up in Australia but returned to South Africa in 1956. He came back to Australia at the end of 1979. He is married and has three children. He qualified in South Africa as a boilermaker but spent much of his adult life there designing, manufacturing and marketing black bituminous coalflred gasification combustion systems. Re has been a permanent resident in Australia since 1979 and became a naturalised Australian citizen on 30 June 1986. He has lived in Brisbane at all relevant times.
caravan parka, and for other domestic and commercial purposes.
In 1985, under the business name Multi Energy Australia, he was engaged in the business of designing, building, marketing and selling coalfired heating equipment, said to be particularly appropriate for heating swimming pools, supplying hot water for
and the transcript contains it all. I could not discuss these matters here without reproducing many documents in many magnifications at the same time, in a way which present wordprocessing and computer technology available to the Court does not easily permit.
It will suffice to say that the evidence that the three documents
are forged is overwhelming and indisputable. There was no
remotely satisfactory explanation of why if they were all
genuine, there needed to be four agreements or why there were
erroneous patent numbers for the Coalbrite boilers in some of
them. Yet these unexplained features among others provide
additional reason to believe that those three were quite
unauthentic. To me there is little doubt as to who performed the
forgeries and who was involved in the conspiracy to do so. The
evidence also makes it obvious why these sinister crimes were
committed. As it happens, the reasons and motives were quite
futile because, in my opinion, the documents are legally speaking
ineffective non-entities and a waste of paper and effort. There
has nonetheless been a considerable degree of perjury given in
this case in this connection, and a rather nasty conspiracy that this false evidence be persisted in by the applicant and a number
of others. However, these matters are not for final judgment by me. It is for the Director of Public Prosecutions to determine whether and what action should be taken. The evidence will be referred to him.
That leaves the genuine confidentiality agreement. It 1s noteworthy that this is the only one of the agreements where the original document is apparently not available. A photocopy is in evidence. The original appears to have been lost.
relevant heating equipment for the copyright claim was called a Retrofit boiler. Later, an apparently accidentally typed "Coalbrite boilern in one of the amendments was replaced by the term "Retrofit heating device". In the last amended Statement of Claim, this became a "Retrofit Furnace and in particular not the current Coalbrite Heaters". It is odd that the applicant did not seem to know what his product was.
The applicant sought declaratory relief in respect of, and for damages for a breach of, his alleged copyright in the drawings, specifications, sketches and the like of this Retrofit furnace, all of which he claimed to be his original work. The applicant also sought damages for breaches of confidentiality and of contract, an account of profits in respect of the breaches of copyright and confidentiality, and injunctions to restrain further breaches and to prevent the respondent from "being involved in the manufacture, sales or installation of coalfired equipment before the expiration of ten years from 10 April 1985".
The damages claim was particularised on 11 December 1989 in response to my order after the first two days of hearing. Apart
from amounts which for present purposes can be collected under
the heading of legal costs and are not recoverable as damages, these included claims for losses of existing or expected future contracts and orders for the sale of Retrofits, alleged secret commissions, and a number of other elements which for present purposes can be summarised as claims for the losses of the opportunity and likelihood of profits, and of goodwill. Although part of the claim for damages was said in the particulars to be
I can find no legal basis for a voluntary agreement of such a
vague amorphous kind becoming the basis of an enforceable obligation of confidentiality in relation to information gleaned during its existence.
More specifically for present purposes, the document related to "Coalbrite boiler and heating systemsn which were at the time patented or in which patents were pending. This did not describe the Retrofit furnace at that or any time. Further, there was no consideration of any kind for this agreement, especially if it: was part of an agreement by the applicant merely to "train" the respondent as a salesman. Its content is so confusing as to render it effectively meaningless, at least in the context of this case.
(c) Were there any breaches of confidentiality?
Other than the evidence on infringement of copyright which as I have already said, failed to establish breach, the only additional allegation by the applicant was that the respondent
discussed the so-called confidential information with Mr Ian Hay.
No evidence of this was provided and it was denied by Mr Hay and
by the respondent.
Assuming that the respondent did come by information that attracted confidentiality in circumstances importing an obligation of confidence (possibly through any genuine confidentiality agreement), the applicant has not shown that the
The applicant's choice to represent himself was not, as he told me, through lack of funds but through a belief that he could do the job better himself. This had a significant effect on the expedition and efficiency of the conduct of the litigation. Having heard him myself over an extended period, I can well understand the difficulties the applicant's earlier lawyers must have encountered and the problems the applicant must have had with the advice they presumably gave him. Although the overall result could not have been different whoever had conducted the case, and despite his absolute right to represent himself, the applicant would have been better protected if he had been legally represented, especially in one important aspect of the case. He is an eloquent and intelligent man who displays considerable charm and persuasive skills, but this was a case of some technicality requiring acuity of comprehension and expression, in which he should have been, as he was apparently able to be, represented by a lawyer.
As it turned out, the applicant's basic case was in substance
quite simple. He claims to have invented what he called the
Retrofit heating device to serve as an adjunct to a coalfired boiler. Its purpose was to provide a means of using coal to heat water, to introduce the coal into the furnace mechanically rather than by direct manual feed, and to generate a temperature, by airflow under pressure and other means so that sufficient heat was available whenever needed for the heater's purpose and application. Part of the operation involved trapping the smoke
relevant documentation at the appropriate time. In any event, there is absolutely no evidence that even if the respondent had been entirely to blame for the applicant's failure to patent the product, any damage flowed to the applicant as a result, or that other relief would be appropriate.
Despite many urgings and requests from me at different stages of the hearing, the applicant closed his case in chief without any relevant evidence of damage at all. He did file the particulars of damage to which I referred earlier but even during the respondent's case and in reply, led virtually no evidence to support these particulars. In view of my conclusions that there were no relevant breaches to found an inquiry into damages, it is not appropriate that I now do other than observe that the assertion of damage seems to me to have little or no substance. Apart from the fact that no documentary or other evidence was submitted to support any of the claims in this connection, it
goes without saying - and was explained to the applicant - that
the claimed costs involved in preparing the litigation and any
work on the preparation and attend the hearing of this case, are loss of earnings of the applicant or his witnesses for having to not recoverable damages. Even the two major claims for loss of orders and contracts and for loss of profit opportunities and goodwill were supported by no evidence at all. In view of the advice and explanations I gave to the applicant in this connection during the hearing in an attempt to exclude or limit the possibility that the absence of such evidence might be due to
The applicant claimed copyright in this material. Some of it was said to have been brought into existence many years ago and the applicant said that it contained "secret" technology for which he is entirely responsible. He said that at the time of the respondent's engagement, some four "Priority Information Agreementsn (one was called a "Priority Confidential Information Agreementn) (confidentiality agreements) by which the respondent is alleged to have acknowledged that all the information made available to him by the applicant was confidential and to have agreed to respect that confidentiality. The applicant says that the respondent nevertheless manufactured and sold a coal burning heater, either during or after ceasing his association with the applicant, which is a complete or substantial reproduction of the applicant's product. He particularised a few such installations allegedly made by the respondent and said that the respondent could only have accomplished his burner for those places by first stealing and then copying the applicant's documents. The allegation is thus that the respondent infringed the applicant's
copyright in, and breached his own confidentiality undertakings
and obligations in relation to, these documents.
Despite the unsatisfactory nature of the allegations made .in the applicant's pleadings in this respect, it became clear at the end of the case that this claim has nothing to do with the invention of the Coalbrite boiler at all, or with protecting the applicant's intellectual property in heaters of this name or variety. The evidence established that the applicant holds patents in respect of some types of Coalbrite boilers, but despite the pleadings, a considerable amount of affidavit evidence, and much of the initial stages of the case, the
AUSTRALIA S IN THE FEDERAL COURT OF GENERAL DIVISION
BETWEEN: THOUPSON PARK Applicant
AND : ENERCON PTY LTD First Respondent
AND : GRBGORY WHEAT Second Respondent
CO=: Einfeld J DATE : 1 June 1990
PLACE: Brisbane
MINUTE OP ORDERS
1. The application is dismissed.
2. The Registrar is to transmit to and draw to the attention of the Director of Public Prosecutions the evidence and judgment in this matter to consider the question of forgery, a conspiracy to forge three
perjury in the course of this hearing in relation identified documents and any conspiracy to commit thereto.
3. The applicant is to pay the costs of the respondents
- Settlement and entry of orders are dealt with in Note:
accordance with order 36 of the Federal Court Rules.
from his own and his father's experience and experimentation supplemented by technology he had learned elsewhere. He says that in any event the applicant's technology had been on the market in New Zealand for some time before they commenced their association. Moreover, he claims to have made no profit from the installations identified by Nr Park, as a large amount of the cost of these early jobs went into research and development and in modifying the system, but agreed that he has earned profit on installations since. The respondent thus denied that copyright subsisted in the applicant and that he infringed copyright if it did.
The respondent also denied any undertakings as to relevant confidentiality and denied any breaches. Anomalously, he acknowledged, whereas the ultimate facts alleged by the applrcant effectively denied, that contractual relations existed between them such as might have given rise to some obligations of this kind. Ominously for the applicant, the respondent asserted that he signed only one of the four confidentiality agreements put forward by the applicant as acknowledging and agreeing to respect confidentiality in the documents and that the other three were
deliberate and wilful forgeries carried out by or with the knowledge of the applicant. The respondent said that the fourth document which he did sign did not amount to an enforceable agreement of confidentiality between the parties in relation to the documents or the technology represented by and in the Retrofit heater. If it did, he denied any breach and said that in any event the applicant should, because of his own conduct in this connection, be refused relief.
(4) In this section "qualified personn means an Australian citizen, an Australian protected person or a person resident in Australia.
Section 10 defines an "Australian protected person" for the purposes of the Act as:
a person who, by virtue of regulations in force under
the Nationality and Citizenship Act 1948-1967, is, for the purpose of that Act, under the protection of the Australian Government.
The Nationality and Citizenship Act is now cited as the
Australian Citizenship Act.The relevant facts on which the respondent relied came essentially from the applicant himself. It seems clear from the applicant's evidence that he was not an "Australian protected person". As copyright can only be found to subsist in an original work prepared by a qualified person under the Act at the time the original work was done, this means that the original work must be shown to have been produced by the applicant when he was an Australian citizen or resident. In the respondent's
were shown by the applicant's evidence to have been drawn in submission, the relevant documents in which copyright is claimed South Africa. The applicant agreed that the pen drawings from which the documents in Court were taken, were prepared in South Africa and that he originally conceived the Retrofit heater in South Africa. He said of it:
It was like a tree. It started its roots in South
Africa and then i t grew here - from there to here.From this and other evidence it seems that the applicant did all the original or preliminary drawings in South Africa but that they were then photocopied or traced, and altered, worked on and improved for many years in both South Africa and Australia. The drawing. identified in Court were of the same or a similar design albeit from a different perspective than earlier versions.
Counsel for the respondent questioned the applicant closely about the dates the original drawings were done. The questions elicited a variety of unclear answers. but the drawings seem to be at least ten years old, some as old as thirty, and they are apparently substantial reproductions of what had been drawn in South Africa.
The respondent concedes that it is all very unclear when the subject drawings of this action came into existence and where they were drawn, but he says that this is the applicant's problem because he bears the onus of proving that copyright subslsts in the drawings. The respondent argues that the applicant has
subsistence of copyright. failed to show exactly how he establishes the necessary The facts that the applicant was not an Australian resident between 1956 and 1979 (when he was aged 21-44 years) or a citizen until 1986 (when aged 51 years) and that he was not an Australian protected person. together with other evidence, seem to establish that he was probably in South Africa at the time the relevant
original drawings were done. However, in view of my other findings, it is not necessary that I decide this case on such a narrow basis. I will therefore assume, without finding, that he was a qualified person at the relevant time.
(b) Other basic concepts Originality The applicant's allegation is that the documents, especially the sketches and drawings, were his own original "artistic workn or "literary workn, as defined by the Copyright Act. Assuming that they are artistic or literary works or both, there was, as summarised earlier, a direct factual dispute on their originality. Apart from the evidence of the parties on the matter, several other witnesses gave evidence on this subject, much of which was quite confused. It is, however, also not necessary for me to resolve this issue because the situation concerning reproduction is much clearer.
Reproduction by respondent
The evidence on reproduction by the respondent of the applicant's work is based on two simple propositions. The first is that the respondent was seen on one occasion, by a witness Mr Mislin, who was a long time friend and associate of the applicant, to be in the applicant's office after business hours and without supervision or authority, acting suspiciously. Thereafter, he was seen to be leaving the premises with some unidentified documentary materials in his possession. The second was that the applicant and 2 witnesses (Mr Mislin and the applicant's patent attorney, Mr Adams) saw the respondent's Encoal heaters in operation at sites on Bribie Island and at Toowoomba and they looked like, or appeared to work as, Retrofit heaters. They did not see the inside of either unit, only its outside. The applicant's son Mr Robert Park also said that he had occasion to reprimand the respondent for being in .his father's office "snooping around" alone on many occasions. Mr Robert Park said that everything about Retrofit was open for the respondent to see but that he should not have been in the office alone.
Despite earlier discovery and the availability of the subpoena, the applicant produced no documentary evidence of a copyright breach; he asks that it be inferred from these two facts proved. Like his son, he frequently stated that all his papers and possessions were "open" to and for the respondent. How then could the respondent have been acting "suspiciously" when in the off ice?
As against that flimsy evidence brought by the party bearing the
onus of proof on this issue, the respondent and his father, and a statement from a Mr Hans Brandemeier of Wodonga, Victoria, admitted into evidence by consent without his attendance for cross examination due to his need to remain with his terminally ill wife, all testified to an origin of the respondent's heater different to the applicant and his design. Mr Brandemeier was the inventor of a heater called a "Branco" which was designed to burn victorian brown coal. The evidence was that the
respondent's "Encoal" was a conversion of the "Branco" so that it would burn Queensland black coal, and that the respondent sold his conversion pursuant to a licence agreement with Hr Brandemeier. The respondent denied the allegations of impropriety and stealing.
These denials and the respondent's explanations and the evidence of hi6 witnesses, while not without some unexplained or inadequately explained anomalies and inconsistencies, were basically credible. I accept the respondent's general explanation of the circumstances and origins of his design and his recounting of its different features to the applicant's Retrofit. Coupled with the applicant's complete inability to
prove copying, I accept the respondent's denial that the Encoal is a copy of the Retrofit. The evidence quite failed to persuade me that the respondent's heaters resulted from or were reproductions of the applicant's drawings and sketches. Assuming that the applicant had copyright in them, no breach or infringement has been established. There is no case for an injunction.
2. Breach of confidentiality In my opinion, the respondent's account of his original agreement to associate with the applicant is to be preferred. There seems little doubt that there was at least an agency agreement between the parties. This does not entirely exclude the applicant's very belated assertion that their agreement was that the applicant would engage in some "training" of the respondent in his device and its operational and design features so that the respondent could be an effective salesman or agent. That would be an entirely normal and expected feature or part of such an agreement. But the applicant's last minute proposition that training was all the agreement comprised so that the respondent and his business would gain no material benefit of any kind unless and until he had received and successfully passed a "trainingn course of indeterminate length and definition, is far fetched and in my view false. Judged by the applicant's
explanation to me of his claimed invention, and of his case, I doubt that the applicant could ever have been a successful teacher, at least within a reasonable period of time, of the technology involved.
The real question to be determined in this context is whether any duty of confidence arises from the relationship actually established and if so, what the duty was. Apart from statute, such a duty may arise in equity or by agreement express or implied from facts and circumstances proved. Here both are alleged. Because an examination of these approaches is irrelevant if no breach is proved, I was tempted to move to that
importance of the evidence on this subject, and the way the case issue first, but upon reflection it seems to me that the was conducted, make it appropriate to deal with the separate
issues raised in a more conventional order.(a) Did a duty in equity arise in this case?
Although the precise relationship between the respondent and the applicant is unclear, it would not seem to be the type of arrangement where an obligation of confidentiality would easily be implied. On the other hand, the relationship may be one on which equity would impose such an obligation. In Seager v Copydex [l9671 2 All ER 415 at 417 Lord Denning MR spoke of the "broad principle of equity that he who has received information in confidence shall not take unfair advantage of itw. He must not use the information "to the prejudice of him who gave it without obtaining consent."
Indeed the authorities generally seem to establish that the action for breach of confidence comes into its own outside of contractual relationships. It has even been argued that both types of obligations, equitable and contractual, should be mutually exclusive, although this does not seem to have been borne out by the cases and many courts have regarded contractual and equitable obligations of confidence as having the same content and operation: see, for example, Ansell Rubber CO Pty Ltd v Allied Rubber Industries Pty Ltd [l9671 VR 37.
The basic requirements for a successful action were enunciated by Megarry J (as he was then) in Coco v A.N. Clark (Engineers) Ltd
[l9691 RPC 41 (Ch D): In my judgment, three elements are normally required, i f apart from contract, an action of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene HR in the Saltman case (Saltman Engineering CO Ltd v Campbell Engineering CO ~ t d m r
65 RPC 203) must "have the necessary quarity of confidence about i t w . Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.
(b)
uid an enforceable legal duty (perhaps contractual) arise from the so-called confidentiality agreements?
his directly raises the forgery issue on which there was a
considerable amount of evidence given and which occupied a considerable amount of hearing time. Understandably, Pincus J had earlier expressly excused the applicant from having to present his evidence on this matter on affidavit.
The applicant's evidence was that on 15 April 1985 when he and the respondent first discussed their proposed association, he told the respondent that as he would be getting access to the applicant's nsecret technologyn and "confidential informationn, he would have to sign these agreements before, and as a pre-condition to, commencing with the applicant. The applicant says that he presented four documents to the respondent who took them away to his own office which was nearby. Later in the day the respondent returned with them to the applicant's office where he signed them in the presence of the applicant, his son Robert
applicant and Robert Park swore that they witnessed the signings, Park and Mr Mark Bender (the applicant's foreman), and in the case of one of the documents, a Mr Jurgen Schulze as well. The as did Mr Schulze in the one case. While making due allowance for the fact that he was suffering From Ross River disease, M r Schulzels evidence was unconvincing and vague. If the applicant's account is true, I cannot understand why Mr Schulze signed only one document as a witness. M Bender filed an affidavit, but it was not read or relied on by the applicant. Mr ..
Bender was not called and no explanation for his absence was
| tendered. | In the circumstances his was a significant absence. |
The respondent says that he only signed one document, that he did so in the applicant's office on 15 April 1985 without reading it or taking it away, that the only person present was the applicant, and that as far as he can recall, nothing else was written or printed on the document at the time. He said that the signatures on the other three documents purporting to be his are all forgeries.
A handwriting expert, Mr Short was called by the respondent to
corroborate his evidence on the signatures. Remarkably, the applicant tendered into evidence a report from another handwriting expert who was out of the country at the time of the trial, which also corroborated the respondent's assertions. Yet to the end the applicant argued for the genuineness of the signatures and the acceptability of his own and his witnesses1 evidence as to their authenticity. The applicant's assertion was that the respondent had signed all four documents but on the three alleged forgeries had done so in such a way as to make them
| preposterour. | appear forged. The evidence establishes this proposition to be |
| It ie not necessary for me to repeat here the content and effect of the handwriting evidence as to discrepancies between the signatures on the documents alleged to be false and the evidenced examples of the respondent's genuine signatures. Nor is it appropriate or even possible to detail the anomalies in other aspects of the documents. I did so during the evidence itself |
and the transcript contains it all. I could not discuss these matters here without reproducing many document8 in many magnifications at the same time, in a way which present wordprocessing and computer technology available to the Court does not easily permit.
It will suffice to say that the evidence that the three documents are forged is overwhelming and indisputable. There was no remotely satisfactory explanation of why if they were all genuine, there needed to be four agreements or why there were erroneous patent numbers for the Coalbrite boilers in some of them. Yet these unexplained features among others provide additional reason to believe that those three were quite unauthentic. To me there is little doubt as to who performed the forgeries and who was involved in the conspiracy to do so. The evidence also makes it obvious why these sinister crimes were committed. As it happens, the reasons and motives were quite futile because, in my opinion, the documents are legally speaking ineffective non-entities and a waste of paper and effort. There has nonetheless been a considerable degree of perjury given in this case in this connection, and a rather nasty conspiracy that
| of others. However, these matters are not for final judgment by | this false evidence be persisted in by the applicant and a number |
| me. It is for the Director of Public Prosecutions to determine whether and what action should be taken. The evidence will be referred to him. | |
| That leaves the genuine confidentiality agreement. It 1s noteworthy that this is the only one of the agreements where the original document is apparently not available. A photocopy is in evidence. The original appears to have been lost. |
This document was in the following form:
I, the unaerslgned on behzlf o r
management, committee and s t d r , do liercby acknowledge the TlfOMPSON PARK
Patent ~o""21 a d Pa tm ts Pending r e l a t lve t o the *COrlLBRITIY bo i l e r m d
heat ing systems and t h a t a l l quotations, spec l f i ca t lons , sketches, b luepr r r t s , product .md i r m t a l l a t l o n cllnsrr*rLonc rcmsln 'Lllo~npzon Parks ' propcrty and rnc3 t
ne i the r be used no r d i sc losed to th l rd persons v l thou t h i s wr i t ten authori ty,
and a r e to be re turned upon rcauest . We agree not t o d i s c l o s e any s e c r e t and conCidentlal information to any person outside our o rgan i sa t ion o r t o any person within our organisa t ion not having a
bona f i d e 'need t o k n o w ' sanm. N1 documents and information s h a l l be used so le ly f o r eva lua t ing a proposal from o r supplying a quota t ion o r component.
In accordance with 'Ihompson Parks' pollcy concerning infringement m secuzfty
of h i s technology, we agree t h a t d ~ s c u s s i o n s undertaken regarding * C O U F G ' E t heat ing systems v i l l be conilned to the reliability, perfonnanco, achievements, meri ts and money-savlng e n e r o b l l l reductions of the system over previous pas t systems, r a t h e r more than technica l specifications, dimensions and techniques.
lhese terms s h a l l not apply to any d o r m a t i o n which we can document, vas i n o r
| .' | - | e n t e r s the publ ic domaln, | i r ~ t l ~ o u t | f a u l t of | ours o r was | i n o r comes in to our |
| . | - |
possession without r c a t r ~ c t ~ o n s .
I can find no legal basis for a voluntary agreement of such a
vague amorphous kind becoming the basis of an enforceable obligation of confidentiality in relation to information gleaned during its existence.
More specifically for present purposes, the document related to "Coalbrite boiler and heating systemsn which were at the time patented or in which patents were pending. This did not describe the Retrofit furnace at that or any time. Further, there was no consideration of any kind for this agreement, especially if it was part of an agreement by the applicant merely to "train" the respondent as a salesman. Its content is so confusing as to render it effectively meaningless, at least in the context of this case.
(c) Were there any breaches of confidentiality?
Other than the evidence on infringement of copyright which as I have already said, failed to establish breach, the only additional allegation by the applicant was that the respondent
No evidence of this was provided and it was denied by Mr Hay and discussed the so-called confidential information with Mr Ian Hay. by the respondent. Assuming that the respondent did come by information that attracted confidentiality in circumstances importing an obligation of confidence (possibly through any genuine confidentiality agreement), the applicant has not shown that the
respondent used his confidential information in an unauthorised way, with regard to either the Retrofit technology or any other confidential information to which the respondent may have had access during the parties' relationship. Nor is there any evidence of detriment and prejudice in the equitable sense. Further, even if the respondent has breached an obligation imposed by equity, the applicant would still face the difficulty of obtaining any relief if he is found to be seeking equity's
help without "clean hands". My findings on the alleged forgeries are undoubtedly relevant in this regard.
3. Patent Law
There was some evidence that the Retrofit heater was patentable and that the applicant at one stage applied for one or more patents for it. As the applicant made mention of this matter several times in the course of the case, although it was irrelevant, I shall deal with it briefly. This is not a breach of patent case. Indeed there was no patent to be infringed. The applicant argued, with at best only marginal support from the evidence, that his inability to obtain a patent was due to the
public revelation by the respondent of the "secret invention" in
contravention of patent law. In fact the evidence reveals that
if the Retrofit was patentable in the hands of the applicant - and it is not necessary to determine either its patentability or the rights of the applicant to its patent, both of which were
themselves disputed in the case - the failure to achieve the patent had nothing at all to do with the respondent but was the fault of the applicant who did not complete and submit the relevant documentation at the appropriate time. In any event,
there is absolutely no evidence that even if the respondent had been entirely to blame for the applicant's failure to patent the product, any damage flowed to the applicant as a result, or that other relief would be appropriate.
4. Damages Despite many urgings and requests from me at different stages of the hearing, the applicant closed his case in chief without any relevant evidence of damage at all. He did file the particulars of damage to which I referred earlier but even during the respondent's case and in reply, led virtually no evidence to support these particulars. In view of my conclusions that there were no relevant breaches to found an inquiry into damages, it is not appropriate that I now do other than observe that the assertion of damage seems to me to have little or no substance. Apart from the fact that no documentary or other evidence was submitted to support any of the claims in this connection, it
goes without saying - and was explained to the applicant - that the claimed costs involved in preparing the litigation and any
work on the preparation and attend the hearing of this case, are loss of earnings of the applicant or his witnesses for having to not recoverable damages. Even the two major claims for loss of orders and contracts and for loss of profit opportunities and goodwill were supported by no evidence at all. In view of the advice and explanations I gave to the applicant in this connection during the hearing in an attempt to exclude or limit the possibility that the absence of such evidence might be due to his lack of knowledge Of the need to provide it, I am inclined to think that its unavailability rather than ignorance and his self representation is the reason. Indeed on the evidence actually given, it is most unlikely that any such evidence exists or could ever have been available.
Conclusion The application is dismissed with costs. I direct the Registrar to transmit to and draw to the particular attention of the Director of Public Prosecutions the evidence concerning the forgery of and conspiracy to forge the three confidentiality agreements, the perjury committed and conspiracy to commit perjury in the course of this hearing in relation thereto, and that part of this judgment which deals with these matters.
.r
/ I certify that this and the +wcQ - ' preced~ng peges are a tme copy of the
Reasons for Judgment herein of his Honour
Just~ce E~nfeld
IN THE FEDERAL COURT OF AUSTRALIA ) A QUEENS
) No QG57 of 1988 GENERAL DIVISION )
BETWEEN: TSOllPSON PARR Applicant
AND : ElgRCON PTY LTD First Respondent
AND : GREGORY WHEAT Second Respondent
CORAPI: Einfeld J
DATE : 1 June 1990
PLACE: Brisbane
The application is dismissed.
The Registrar is to transmit to and draw to t he attention of the Director of Public Prosecutions t he evidence and judgment in this matter to consider t h e question of forgery, a conspiracy to forge three
perjury in the course of this hearing in relation identified documents and any conspiracy to commit thereto. The applicant is to pay the costs of the respondents.
- Note: Settlement and entry of orders are dealt with in
accordance with order 36 of the Federal Court Rules.The applicant appeared in person.
| Counsel and solicitors for | Mr M Amerena instructed by | |
| the respondent | Morris Fletcher & Cross | |
| Date of hearing | 8,9,10 November 1989; | |
| ||
| 20 February 1990 | ||
| Date of Judgment | 1 June 1990 |
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