Vision Systems Limited v Airsense Technology Limited - [2004] APO 5

OFFICIAL NOTICE
EX TEMPORE DECISION OF A DEPUTY COMMISSIONER OF PATENTS
Application : No. 689484 by Airsense Technology Limited,

Title: Smoke Detection System

Action: Opposition under Section 59 by Vision Systems Limited, and the matter of a summons to witness.

Decision: Issued 12 March 2004
[Date of hearing: 9 March 2004]

Abstract

Following an earlier decision, a witness resident in the UK tendered a medical certificate in support of a claim to a lawful excuse for not attending a hearing before the Commissioner.
·     Cross examination viva voce is preferred to video link, especially where major issues of credit are involved [following Moyett Pty Limited v Foundation Health Care Limited [2003] FCA 116]
·     However, while attendance in person is clearly the preferred situation, it is still subject to the over-riding consideration of lawful excuse
·     Conclusions deduced from a critical analysis of statements made by the Mr Mitchell and others in various documents is what might be expected from a legal analysis of a situation. But such is not a medical diagnosis. A medical certificate is what is expected from a medical diagnosis.
·     The medical certificate was accepted as providing a lawful excuse for non-attendance in person at the hearing. However, it was observed that there was no lawful excuse for non-attendance for cross-examination by way of video.
PATENTS ACT 1990
EX TEMPORE DECISION OF A DEPUTY COMMISSIONER OF PATENTS
Re:Patent Application No. 689484 by Airsense Technology Limited, opposition under Section 59 by Vision Systems Limited, and in the matter of a summons to witness.

BACKGROUND

This matter is a continuation of a dispute about whether a Mr David Mitchell, who has been summonsed to appear before the Commissioner at a hearing next week, has a lawful excuse for not attending in person.
In a decision I issued on 23rd February 2004, I stated inter alia the following:
8.The opponent is insisting upon personal attendance by the witness. Given the extensive travel that would be required by Mr Mitchell, I think there needs to be a good reason to require his personal attendance vis-à-vis using videoconference. The opponent asserts that they intend to seriously challenge the credibility of the applicant’s witnesses, including Mr Mitchell. From the general discussion of the nature of the proposed cross-examination, I am satisfied that the cross-examination is intended to seriously investigate issues of credibility. I am also satisfied that cross-examination in person would be highly preferable to one conducted over a video link. Therefore I do not consider the offer to appear by video link is sufficient in the present case to constitute appearance before the Commissioner.
14.In the present case, while I am not persuaded that the reasons given in relation to flying constitute a lawful excuse, I cannot exclude the possibility [which, while not being likely, could be read into the reasons] that the witness may have a genuine medical or psychological condition that would effectively prevent him from undertaking the travel to Australia. In circumstances where (for example) the witness had developed a pathological fear of flying, I would think it quite inappropriate to insist on that person undertaking the travel – and in these circumstances a video conference arrangement would be appropriate.
15.Accordingly, I conclude as follows.
·     The reasons given in the letter of 19 February 2004 do not constitute lawful excuse for non-attendance at the hearing in person;
·     I cannot exclude the possible existence of a medical or psychological condition that would prevent Mr Mitchell from undertaking the travel to Australia;
·     A medical certificate by a qualified medical practitioner of psychologist that clearly and unequivocally states that Mr Mitchell suffers from a specified condition or disorder that prevents him from flying to Australia would prima facie found a claim to lawful excuse for non-appearance.
On 1 March the applicant provided a medical certificate in respect of Mr Mitchell. The certificate was provided by a Dr Alan D. Kohn M.B.Ch.B.(Birmingham). It states:
"Re: Mr David Mitchell - {address, Date of Birth}
This is to certify that I have examined the above today and find that he is suffering from phobic anxiety, which particularly expresses itself in the terms of fear of flying and fear of heights.
I am recommending that he is not fit to travel by plane for the foreseeable future."
The opponent responded on 2 March, arguing that the certificate failed to meet the requirements set out in para 15 of my decision. They state:
"We consider the certificate does not satisfy the test stipulated by the Deputy Commissioner in that it does not provide clear and unequivocal evidence from an appropriately qualified medical practitioner or psychologist that Mr Mitchell suffers from a "specified condition or disorder that prevents him from flying to Australia". There are a number of aspects of the certificate, and the circumstances in which it was issued, which renders it of little or no probative value:
·The certificate was not issued by a person appropriately qualified to unequivocally state that Mr Mitchell has a specified mental condition or disorder. The certificate was issued by a doctor of an "independent family practice". That is, someone who would be described in Australia as a general practitioner. General practitioners are not appropriately qualified to unequivocally assess whether patients suffer from a mental condition or disorder, and it is for this reason that patients suspected of having a mental condition or disorder are invariably referred by general practitioners to specialists for assessment.
·Dr Kohn's inability and unsuitability to provide a certificate assessing Mr Mitchell's condition for the purpose of satisfying the Deputy Commissioner's direction is evidenced by the terms of the certificate itself. Dr Kohn indicates that he examined Mr Mitchell on 25 February 2004. Dr Kohn does not suggest that he has previously examined Mr Mitchell or provided any treatment in relation to a phobia, as would be expected if Mr Mitchell has previously had difficulty flying. As Dr Kohn does not appear to have previously examined Mr Mitchell, he is unable to determine whether Mr Mitchell's symptoms are genuine and long-standing or merely recent and transitory. Dr Kohn's assessment of Mr Mitchell appears to be based on a single examination, which cannot reasonably form a sufficient basis for a clear and unequivocal statement from a general practitioner that Mr Mitchell generally suffers from a specific anxiety triggered by specific circumstances.
·We also note that the certificate is not unequivocal in its terms. It states that Dr Kohn recommends that Mr Mitchell is not fit to travel. It does not unequivocally state that Mr Mitchell is not fit to travel, nor does it state that Mr Mitchell is unable to travel. Furthermore, it uses a vague and uncertain "foreseeable future" as the determinant of when Mr Mitchell may be able to travel.
·If Mr Mitchell suffers from a "a phobic anxiety, which particularly expresses itself in the terms of fear of flying and fear of heights", one would have expected Mr Mitchell to have consulted a doctor before or after undertaking his recent flights, and that an appropriate medical certificate could have been issued by a doctor who examined him at a time when the "phobic anxiety" had recently manifested itself, or was about to be triggered.
·We were previously told in the letter from Lesicar Perrin of 19 February 2004 that Mr Mitchell used to make "short flights to various parts of Europe and back, but was never at ease." This is inconsistent with a certificate recommending that Mr Mitchell is not fit to travel by plane at all. There is nothing in the certificate which suggests that Mr Mitchell is able to travel short distances, but cannot travel long distances.
·We were also told in the same letter that Mr Mitchell is "responsible for providing technical support for maintenance of smoke/fire detection systems, often solving problems with malfunctioning smoke/fire detection systems." Smoke/fire detection systems generally have air intakes or sensors installed at ceiling level to detect products of combustion, and hence detect smoke/fire. Mr Mitchell's occupation therefore requires that he undertake some work at least at ceiling level. This is inconsistent with a phobic anxiety which expresses itself as a fear of heights.
In light of the above, we consider it intrinsically improbable that the certificate was obtained from someone appropriately qualified to assess Mr Mitchell's general mental condition.
Rather than being consistent with a long-standing phobia, the certificate is more consistent with a single interview being conducted with Mr Mitchell, during which Mr Mitchell professed a fear of flying (and, consistent with such a phobia, a fear of heights).
We submit that the stipulation made by the Deputy Commissioner that Mr Mitchell produce "a medical certificate by a qualified medical practitioner or psychologist that clearly and unequivocally states that Mr Mitchell suffers from a specified condition or disorder that prevents him from flying to Australia" is simple and clear. In order to satisfy the stipulation the appropriately qualified medical practitioner must be one who is specially qualified to assess Mr Mitchell's mental conditions or disorders, namely a specialist, or at the very minimum, someone who has examined Mr Mitchell over a period of time. The certificate must include a clear and unequivocal statement that Mr Mitchell suffers from a condition that prevents him from flying to Australia, and we submit a certificate that recommends that Mr Mitchell is not fit to travel for the foreseeable future is insufficient. It is quite probable that Mr Mitchell would be able to make the flight to Australia with appropriate medication. In our submission a certificate from an appropriately qualified person such as a psychiatrist, or a practitioner who has previously examined and treated Mr Mitchell for the suggested phobia, clearly stating that Mr Mitchell is unable to travel to Australia due to a specified medical condition which is consistent with Mr Mitchell's previous travel, must be produced in order to satisfy the Deputy Commissioner's stipulation.
Dr Kohn's certificate is tantamount to a statement that Mr Mitchell has informed Dr Kohn that he is afraid of flying and heights. This is a state of mind common to a large section of all communities and does not prevent them from flying, with or without medication. Dr Kohn does not clearly and unequivocally state Mr Mitchell is prevented from flying."
The applicant responded, stating (inter alia)
The requirements as set out by the Deputy Commissioner are relatively plain. These are that:
1.That a medical certificate is required;
2.By a qualified medical practitioner;
3.That clearly and unequivocally states that Mr Mitchell suffers from a specified condition or disorder; and
4.That this condition prevents him from flying to Australia.
On the face of things, and there is no reason to doubt this, Dr. Kohn is indeed a qualified medical practitioner.
...
The Opponent suggests that they would have expected Mr Mitchell to have contacted his doctor concerning his fear. Again we have to take issue with this point. A more normal approach to dealing with situations of this type is to simply avoid the issue of flying which is precisely what Mr Mitchell wishes to do at present.
…
The wording of the certificate is in the form of a recommendation. The Deputy Commissioner has suggested that a clear and unequivocal statement that Mr Mitchell suffers from a specified medical condition is what is required. In our view the terminology used by the doctor is entirely consistent with the requirement of the Deputy Commissioner. In general, medical practitioners would not seek to dictate to their patients the manner in which they live their lives. The general form of medical advice would be expressed as a recommendation and the Dr is merely reflecting this approach in his choice of wording.
…
The Opponent has also made comments in relation to Mr Mitchell's apparent fear of heights and has made comments in relation to Mr Mitchell's occupation require that he undertake at least some work at ceiling level. There are however considerable differences between the extreme heights experienced in air travel compared with the mere climbing of a ladder to reach a ceiling.
The applicant also supplied (on 8 March) a statutory declaration by Mr Mitchell. The bulk of the declaration relates to the nature of his business and the difficulties if he was absent for a week. In the last paragraph he also reiterates his fear of flying.
Also supplied on 8 March is a declaration by Mr Fox (one of the named inventors) supporting Mr Mitchell's assertions about a fear of flying.
I heard the parties this morning on whether the material provided established a lawful excuse for non-appearance in person. The applicant was represented by Mr B Hess of counsel, instructed by Ms D Perrin of Lesicar Perrin. The opponent was represented by Dr J Emerson of counsel, instructed by Mr I Pascarl and Mr N Ramchand of Blake Dawson Waldron.
At the hearing both parties reiterated and amplified their arguments as above. In addition, I advised the parties that I had conducted an Internet search in respect of Dr Kohn, and had noted that he was an "approved panel doctor" for the Australian High Commission in London for the purpose of medical examinations for persons intending to migrate to Australia.
In his submissions, Dr Emerson complained that his side was at a disadvantage – in that they would have liked to have cross-examined Dr Kohn, but that timing (with the hearing being next week) effectively precluded this. In this regard I merely note that their request to summon witnesses was only made on 10 Feb 2004.
During the hearing I inquired as to the existence of any relevant precedent in the Courts. Some hours after the conclusion of the submissions the opponent drew my attention to Moyett Pty Limited v Foundation Health Care Limited [2003] FCA 116. This case concerned whether or not evidence should be taken by video link with the witness being in London. The following three paragraphs from the decision clearly show that cross examination viva voce is preferred to video link, especially where major issues of credit are involved (as is asserted to be the case here):
10 As has been recently illustrated in Australian Medical Imaging Pty Ltd v Mareoni Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 (Palmer J), the trend of authority indicates that evidence by video link should only be allowed upon application supported by evidence showing good reasons for the witness not to attend in person, and whether good reasons exist will depend on a balancing exercise as to whether the convenience of the witness in not attending in person is outweighed by considerations of fairness to the opposite party in the manner in which the trial will be conducted. The balancing exercise referred to will often weigh against the taking of evidence by video link in circumstances such as the present, "where the matter in contest involves major issues of credit or where documentary material of some volume and complexity is likely to be deployed in Court" (at par 27).
11 In Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 at [7] and [10], Spender J said as follows:
"Notwithstanding observations in those cases that there is essentially no real difference between evidence by video-link and viva voce evidence, I disagree and I think it right to recognise that there are deficiencies when evidence is taken by video-link when compared with evidence given viva voce."
I adopted the view of Spender J in Sheldon & Hammond Pty Ltd v Metrokane Inc [2002] FCA 1561 at [10].
12 In the present case, it is readily apparent that the resolution of issues central to the causes of action, as well as to issues of credit, are potentially crucial to the viability of the testimony of Mr Meehan. By way of illustration, Mr Meehan in his affidavit of 24 November 2002 disputes engaging in several material conversations with Dr Davies who is one of the applicants' principal witnesses. For example in pars 13-17 in the above referred to affidavit, Mr Meehan asserted that various critical conversations giving rise to the essential building blocks of the applicants' case did not occur. The veracity of these assertions will need to be tested by the applicants and consequently issues such as truthfulness, bias or motive to be untruthful, and powers of perception and memory are live. In my view, there are major issues of credit that both parties will no doubt seek to explore. In addition given that it is proposed that Mr Meehan be cross-examined for approximately one day, and, I would infer, upon a large amount of complex documentary evidence, it would be prima facie unsatisfactory for his testimony to be taken by video link. My experience with the taking of evidence by that process coincides with that of Spender J cited above.
However, while attendance in person is clearly the preferred situation, it is still subject to the over-riding consideration of lawful excuse – as is apparent from the next paragraph of that decision
13 The evidence propounded by Healthcare's solicitor Mr Friedlander in support of the present application falls short in any event of that which in my opinion would be necessary to off set the disadvantage to the applicants involved in Mr Meehan's testimony being given by video link. Mr Meehan's response to being cross-examined on his affidavits disclose no health or other physical problem, nor any crucial or personal business commitment, which in either case should reasonably prevail over his attendance in Sydney, an attendance which he has said he might yet undertake in any event. Indeed Mr Meehan has not even sworn his own affidavit in support of the application.
{my emphasis added}
Accordingly, in the context of the present application, the basic issue that I have to decide is whether Mr Mitchell has a lawful excuse for not appearing in person for cross-examination at the hearing. In this respect I think the only issue of relevance is whether there are any health problems which should reasonably prevail over his attendance before the Commissioner.
Dr Emerson sought to persuade me to go behind or beyond the medical certificate, and reach my own conclusions about whether Mr Mitchell was medically fit to fly to Australia. I am not prepared to do this for the following reasons:
a. Dr Kohn is apparently a doctor recognised by the Australian High Commission in London. Prima facie he is a doctor of some repute. On the other hand, I am a lay person with no medical qualifications.
b. The arguments put forward by Dr Emerson are based on what might be deduced from a critical analysis of statements made by Mr Mitchell and others in various documents. This is what might be expected from a legal analysis of a situation. But such is not a medical diagnosis. However Dr Kohn has apparently met Mr Mitchell, and has been sufficiently convinced by him as to issue the medical certificate – which is what would be expected in a medical diagnosis.
Dr Kohn's certificate states:
"I am recommending that he is not fit to travel by plane for the foreseeable future."
Dr Emerson sought to impugn this on the basis that this was merely a recommendation – not a prohibition – and that he was still capable of flying. And in the letter of 2^nd March the opponent asserts:
"It is quite probable that Mr Mitchell would be able to make the flight to Australia with appropriate medication."

In my view, the certificate is stating a belief that there would be adverse medical effects or outcomes if Mr Mitchell was to travel by plane. It is not for the Doctor to prevent Mr Mitchell from flying – that is ultimately a choice for Mr Mitchell. However it is equally not appropriate for the Commissioner to (in effect) force Mr Mitchell into a situation where an adverse medical outcome might reasonably be expected.
An expectation that these adverse effects could be overcome by the taking of medication is potentially trivialising the condition of phobic anxiety. Nevertheless, if the effect of insisting on compliance with the summons to witness is to force Mr Mitchell to take medicine he would not otherwise take – then I do not think that is a reasonable situation.
It seems to me, despite the range of submissions, that I can only disregard Dr Kohn's certificate if I am able to conclude:
a.   Dr Kohn issued the certificate at the mere behest of Mr Mitchell, with there being no proper consultation;
b.   Dr Kohn had no professional competence to make the statements in the certificate; or
c.   There was persuasive contrary medical evidence.
The first two of these are serious issues concerning the professional competence of Dr Kohn. I am not prepared to entertain such conclusions absent clear and convincing evidence – and certainly not on the basis of the verbal analysis of statements made in the various documents before me. And on the third point, there is no contrary medical evidence.
Accordingly I am satisfied, on the basis of the medical certificate of Dr Kohn, that there is a lawful excuse for Mr Mitchell not appearing in person before the Commissioner at the hearing next week.
However a person may appear before the Commissioner by video. Mr Mitchell has consistently indicated a preparedness to appear by video, and I understand arrangements have been made in the UK to enable this to occur. I therefor understand that Mr Mitchell is not claiming a lawful excuse for not appearing by video. For the avoidance of doubt, I note that none of the issues raised in this hearing, or in the earlier hearing, establish a lawful excuse for his not appearing by video.
COSTS
The parties indicated that either costs of this matter should be costs in the cause, or that there should be no award of costs. I make no award of costs in this matter.
D Herald
Deputy Commissioner of Patents
Date of Hearing 9 March 2004
Issued 12 March 2004
Patent attorneys for the applicant : Lesicar Perrin, Adelaide
Patent attorneys for the opponent : Davies Collison Cave, Melbourne