Watson v Kriticos (Joinder and Service Applications)

FEDERAL COURT OF AUSTRALIA

Watson v Kriticos (Joinder and Service Applications) [2020] FCA 1019

File number:

NSD 970 of 2019

Judge:

PERRAM J

Date of judgment:

17 July 2020

Catchwords:

PRACTICE AND PROCEDURE – application to join company as second respondent – whether joinder necessary to determine related dispute – where claims concern patents owned by proposed second respondent

PRACTICE AND PROCEDURE – service outside the jurisdiction application – whether prima facie case established for relief sought  

Legislation:

Federal Court Rules 2011 (Cth) rr 9.05, 10.42, 10.43

Cases cited:

BY Windown, Inc v Vautin [2016] FCAFC 168; 249 FCR 262

Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305

Ho v Akai Pty Limted (in liquidation) [2006] FCAFC 159; 247 FCR 205

Date of hearing:

Determined on the papers

Date of last submissions:

25 June 2020 (Applicant)

Registry:

New South Wales

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Patents and associated Statutes

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

Mr G Campbell

Solicitor for the Applicant

Heathfield Grosvenor Lawyers Pty Ltd

Counsel for the Respondent:

Mr D J Ananian-Cooper

Solicitor for the Respondent

Plastiras Lawyers

ORDERS

NSD 970 of 2019

BETWEEN:

DALE CAMERON WATSON

Applicant

AND:

STEPHEN CON KRITICOS

Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	17 JULY 2020

THE COURT ORDERS THAT:

1.Leave be granted to the Applicant to join Whitewater West Industries Ltd as the Second Respondent to the proceeding with effect from 6 December 2019.

2.The Applicant’s interlocutory application for leave to serve out of the jurisdiction be dismissed. 

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

REASONS FOR JUDGMENT

PERRAM J:

1. There are two applications before the Court both of which relate to the Further Amended Originating Application.  The first concerns the joinder to the proceeding of Whitewater West Industries Ltd (‘Whitewater’) as the Second Respondent.  Whitewater is a company incorporated under the laws of British Columbia and has its registered office in Richmond, British Columbia.  The second application is for leave to serve the Originating Process on Whitewater.

2. The current proceeding was commenced on 14 June 2019 by the filing of an originating process. An amended originating application was filed on 21 June 2019. The respondent to it was named as Mr Stephen Con Kriticos. I will refer to Mr Kriticos as the First Respondent throughout these reasons. On 6 December 2019, a further amended originating process was filed. This document purported to add Whitewater as the Second Respondent. It was filed pursuant to Order 1 made on 3 December 2019 which granted the Applicant leave to file ‘the Further Amended Originating Application…in the form sent to the Respondent on 1 October 2019.’ No order had been made joining Whitewater as a respondent under r 9.05 of the Federal Court Rules 2011 (Cth) (‘FCR’) at that time.

3. A party may be joined to a proceeding under FCR r 9.05(1)(b)(iii) where the joinder is necessary ‘to enable…