FEDERAL COURT OF AUSTRALIA

Unilin Beheer BV v Shun Li De Pty Ltd [2006] FCA 534

UNILIN BEHEER BV v SHUN LI DE PTY LTD

NSD 2248 of 2005

UNILIN BEHEER BV v HUILI BUILDING MATERIALS PTY LTD AND ORS

NSD 2329 of 2005

ALLSOP J

9 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.         Adjourn the matter to a date to be fixed for hearing in August 2006.

2.         The applicant file and serve all its evidence on the motions and on the hearing on or before 16 June 2006.

3.         Any notice of motion of any respondent to set aside admissions is to be filed and served on or before 14 July 2006.

4.         All evidence of any respondent in support of those motions be filed and on the hearing of the appeal be filed and served on or before 14 July 2006.

5.         Any evidence of the applicants in reply on either the main hearing or the applications for summary judgment be filed on or before 28 of July 2006.

6.         The parties are to consult promptly about any proposed amendments. If the parties cannot agree the matter is to be relisted. If they can agree, a minute of order as to the amended pleadings is to be filed and served on or before 26 May 2006.

7.         To the extent that any amendment throws up the need for consequential amended pleadings those pleadings may be filed on or before 30 June 2006

8.         Stand the matter over for directions to Tuesday 25 July 2006.  That date may be vacated if it is unnecessary. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         Adjourn the matter to a date to be fixed for hearing in August 2006.

2.         The applicant file and serve all its evidence on the motions and on the hearing on or before 16 June 2006.

3.         Any notice of motion of any respondent to set aside admissions is to be filed and served on or before 14 July 2006.

4.         All evidence of any respondent in support of those motions be filed and on the hearing of the appeal be filed and served on or before 14 July 2006.

5.         Any evidence of the applicants in reply on either the main hearing or the applications for summary judgment be filed on or before 28 of July 2006.

6.         The parties are to consult promptly about any proposed amendments. If the parties cannot agree the matter is to be relisted. If they can agree a minute of order as to the amended pleadings is to be filed and served on or before 26 May 2006.

7.         To the extent that any amendment throws up the need for consequential amended pleadings those pleadings may be filed on or before 30 June 2006

8.         Stand the matter over for directions to Tuesday 25 July 2006.  That date may be vacated if it is unnecessary. 

9.         Orders in accordance with short minutes initialled by Allsop J dated to day in 2329/05 as between the respondents:

(a)       Leave be granted to the Fifth Respondent to file and serve a cross-claim on the First, Second, Third and Fourth Respondents on or before 15 May 2006.

(b)      The Firsts Second Third and Fourth Respondents/Respondents file and serve their respective defences on or before 29 May 2006.

(c)       The Fifth Respondent/Cross-Claimant file and serve a Reply, if any, to the Defences to the Cross-Claim on or before 5 June 2006.

(d)      Discover proceed by way of service of Notices to Produce on or before 12 June 2006.

(e)       The Cross-Claimant and the Cross-Respondents produce documents in answer to Notices to Produce on or before 23 June 2006.

(f)        The cross claim only in NSD 2329/2005 be listed for directions on 27 June 2006 at 9:30am.

10.     Liberty to apply on 3 days’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These two matters were filed in November 2005 and involve claims for the infringement of mechanical patent of no vast complexity.  The respondents were given in the early stage of preparation of the matters an opportunity to attack the validity of the patent by a cross-claim.  No respondent has taken that opportunity, therefore the matter will proceed on infringement only.

2                     There was some indication early that the matter may resolve itself by recognition of the respondents that the applicant had a case.  That has apparently evaporated.  The applicant, in an attempt to bring the matter forward promptly served notices to admit on the relevant respondents.

3                     No respondent has complied with the rules in answers to the notice to produce.  There are some assertions from the bar table that there has been an informal answer.  That may or may not under the rules qualify admissions that have been made. 

4                     The applicant has filed a notice of motion in both proceedings on 8 May 2006, seeking various orders including judgments on admission and summary judgment.  The parties should be aware and familiarise themselves with a change in a regime of summary judgment which may be seen to be brought about by s 31A of the Federal Court of Australia Act 1976 (Cth) which removes from the parties the need to demonstrate that part of a proceeding or a defence be hopeless or bound to fail before one can conclude that it has no reasonable prospects of success.

5                     The explanations given to the Court by the respondents as to why the rules of court were not followed to deal with the notice to admit are not, with respect, satisfactory.  I am told that there will be applications to set aside the admissions.  The best course in my view is to simply set this matter down for hearing and adjourn the applicant's motions to that hearing day and adjourn any further application that the respondents might make to set aside the notice to admit or the admissions to that day also.

6                     This will enable me to examine the matter in the light of such evidence that the parties wish to bring as to infringement which I understand will not be broad ranging. If I think at the hearing of the matter that summary disposal or judgment on admission is a convenient way to deal with the matter, I will deal with the matter on that basis.  I will also deal with the question of costs of what has occurred to date.

7                     At least one of the motions seeks orders by way of amended particulars.  Any amendment should be taken up inter partes between solicitors.  If there is any serious opposition to any amendment the matter can be listed for directions at short notice by contacting my associate through an agreed communication.  If the parties can agree on an amendment a consent minute or order should be filed with the registry.

8                     Also today, the fifth respondent in matter NSD 2329 of 2005 sought, as indicated that a cross-claim will be filed against the first to fourth respondents.  Short minutes of order were handed up in support of this.  The first order seeks leave to file and serve a cross-claim on the first to fourth respondents but the form and a cross-claim is not present before the Court.  I will make the orders sought by the fifth respondent against the first to fourth respondents.  However, if there is any debate about the form of the cross-claim the matter should be relisted and I will deal with the matter on the basis that the fifth respondent needs leave to file the document.

9                     Therefore, the orders that I make today are as follows:

1.         Adjourn the matter to a date to be fixed for hearing in August 2006.

2.         The applicant file and serve all its evidence on the motions and on the hearing on or before 16 June 2006.

3.         Any notice of motion of any respondent to set aside admissions is to be filed and served on or before 14 July 2006.

4.         All evidence of any respondent in support of those motions be filed and on the hearing of the appeal be filed and served on or before 14 July 2006.

5.         Any evidence of the applicants in reply on either the main hearing or the applications for summary judgment be filed on or before 28 of July 2006.

6.         The parties are to consult promptly about any proposed amendments. If the parties cannot agree the matter is to be relisted. If they can agree, a minute of order as to the amended pleadings is to be filed and served on or before 26 May 2006.

7.         To the extent that any amendment throws up the need for consequential amended pleadings those pleadings may be filed on or before 30 June 2006

8.         Stand the matter over for directions to Tuesday 25 July 2006.  That date may be vacated if it is unnecessary. 

10                  In addition to those orders I make orders in accordance with the short minutes initialled by me and dated today in NSD 2329 of 2005 as between the respondents and I list for directions the cross-claim only in that matter on 27 June 2006.

Associate:

Dated:              17 May 2006

In NSD 2248 of 2005:

In NSD 2329 of 2005: