Watson v Kriticos (Short Minutes)
[2022] FCA 380
•11 April 2022
FEDERAL COURT OF AUSTRALIA
Watson v Kriticos (Short Minutes) [2022] FCA 380
File number: NSD 970 of 2019 Judgment of: PERRAM J Date of judgment: 11 April 2022 Catchwords: PRACTICE AND PROCEDURE – where summary judgment and strike out - where parties directed to bring in a short minute of order – where competing short minutes – whether leave to replead should be granted Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 10 Date of last submissions: 25 March 2022 Date of hearing: 23 February 2022 Counsel for the Applicant: Mr G Campbell Solicitor for the Applicant: Heathfield Grosvenor Lawyers Pty Ltd Counsel for the First Respondent: Mr D Ananian-Cooper Solicitor for the First Respondent: Plastiras Lawyers Counsel for the Second Respondent: Mr V Bedrossian SC Solicitor for the Second Respondent: MinterEllison ORDERS
NSD 970 of 2019 BETWEEN: DALE CAMERON WATSON
Applicant
AND: STEPHEN CON KRITICOS
First Respondent
WHITEWATER WEST INDUSTRIES LTD.
Second Respondent
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
1.The parties confer and, within 7 days, bring a minute of order giving effect to these reasons or competing minutes in the event that they are unable to agree.
2.The matter is listed for a case management hearing on 19 April 2022 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
Judgment was given on the Second Respondent’s summary judgment application on 18 March 2022 and the parties were directed to bring in competing short minutes of order. The parties remain in dispute about four matters. After these reasons were prepared, the Applicant’s solicitors sent through an amended set of orders which it sought to have made. It did so without leave. I have disregarded this document.
SUMMARY JUDGMENT IN RELATION TO CONTRACT CLAIM
The first question concerns the terms upon which summary judgment is to be given in favour of the Second Respondent in relation to the Applicant’s breach of contract case. The Second Respondent would wish to see that case identified as the claims against the Second Respondent ‘for damages for breach of contract (including as identified in prayers 6 and 7 of the Third Further Amended Originating Application (“3FAOA”) …’. The Applicant disagrees with the reference to Prayer 6. Prayer 6 involves a claim for breach of contract damages so the reference to Prayer 6 is appropriate. Prayer 7 does not involve a claim for breach of contract damages, however, the Applicant did not oppose the inclusion of Prayer 7 in the claims identified as being subject to summary judgment. In that circumstance, the Respondent’s formulation is appropriate.
SUMMARY JUDGMENT IN RELATION TO CLAIM FOR EQUITABLE COMPENSATION
The Second Respondent says that the Applicant’s claims against it ‘for equitable compensation or any other relief including by way declaratory relief, based upon the allegations pleaded in paragraphs 130(d) and 135-137 of the 5FASOC’ should be summarily dismissed. The Applicant resists this. At §§130(d) and 135-137, the Applicant pleaded a case based on a representation that a new agreement had come into effect on the same terms as the Patent Share Agreement which governed, inter alia, the surf machine invention, but this time in relation to the Recycling Invention. This was said to be by contract (at §135) and by way of an estoppel (at §§136-137). Both the contract and estoppel case fed into §138 where the Applicant alleged that he was entitled to a 12.5% equitable interest in the Recycling Invention and Recycling Patents. The case thus propounded did not include a claim for equitable compensation. In particular, whilst it is possible to imagine in some circumstances that an equitable estoppel (such as that pleaded at §§136-137) might warrant equitable compensation where it was found that the minimum equity required to do justice between the parties warranted something less than the enforcement of the representation, it is apparent from §138 that this is not what the Applicant seeks. In that circumstance, I do not perceive the Applicant as pursuing a case for equitable compensation or any other relief at §§130(d) or 135-137 as against the Second Respondent. Consequently, the Second Respondent’s wish to include summary judgment in those terms is not appropriate.
REPLEADING
The parties disagree on the topic of repleading. At the time the matter was argued, I was asked to reserve the position on this topic. It appears that since the judgment, the parties have agreed that a proposed 6FASOC should be prepared. There are two concepts involved. One is the question of whether, having had a claim struck out, a plaintiff should be given leave to replead it. The second is the entitlement of a plaintiff to seek to amend its case in relation to a matter which was not struck out. The procedure adopted by the parties elides these two concepts.
Three issues arise. The first is whether leave should be granted to amend §12(l) to plead what was formerly contained in a particular to that paragraph (as the Second Respondent submits) or to replead part or all of the subject matter of §12(l). There is no question of repleading involved here as I did not strike the paragraph out. I see no principled basis on which I could prevent the Applicant from making an amendment application in relation to it.
The second concerns whether the terms of the repleading of §157 should be a grant of leave ‘to attempt to re-plead’ the paragraph (as the Second Respondent would have it) or ‘to re-plead’ the paragraph (as the Applicant would have it). I prefer the Applicant’s approach.
The third issue concerns whether the Applicant should have leave to replead §§130, 135-137, 154 and 157 against the First Respondent. I struck those paragraphs out but in relation to the Second Respondent. Since I have granted summary judgment on the claims as they pertain to §§130, 135-137 and 154 in favour of the Second Respondent, it would be inappropriate to grant leave to replead against it. But this is not the question. I do not see why the Applicant should not have leave to apply to amend these paragraphs in relation to the First Respondent. I would extend this to §157 as well.
COSTS
The Second Respondent says that the Applicant should pay 80% of its costs of the interlocutory application but the Applicant says that this should be 50%. Both sides had some measure of success but the Second Respondent has seen off a significant portion of the case against it although its success was not complete. It remains embroiled in the trust claims. An appropriate figure would be 75%.
DETERMINATION OF SEPARATE ISSUES
The parties agree that if a party wishes to file an application for the determination of a separate issue they may bring such an application but they disagree as to whether this should be done within 28 days or 35 days. The period will be 28 days. I will fix no hearing date for that application until it is filed. I counsel the parties against this course. This case has already consumed more than its fair share of the Court’s time for interlocutory disputation. I am sceptical about the feasibility of such a partial trial and I do not think the parties in this case should be permitted to indulge in further interlocutory disputation at the expense of other litigants in this docket. My current inclination would be to set in train steps to bring the matter to trial at the first available opportunity.
CASE MANAGEMENT
The matter will be listed for a case management hearing on 19 April 2022. At this point, I expect the parties to turn their attention to the preparation of the case for trial. To that end, my current intention is to fix the matter for trial in 2023, possibly in March, possibly later in the year. The parties should come with an estimate of how long the case will take. They should bring a minute of order giving effect to these reasons (and the matters which they otherwise agree).
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 11 April 2022
0
0
0