FEDERAL COURT OF AUSTRALIA

GMCA Pty Ltd v Black & Decker Inc [2007] FCA 1680

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory judgment that refused leave to rely on evidence filed outside fixed timetable – application refused.

Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 cited

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170 cited

The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 cited

GMCA PTY LTD v BLACK & DECKER INC AND BLACK & DECKER (AUSTRALASIA) PTY LTD

VID 975 OF 2007

HEEREY J

2 November 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal from the interlocutory judgment of Finkelstein J is dismissed

2.                  The appellant’s motion dated 26 October 2007 is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from the interlocutory judgment of Finkelstein J given on 23 October 2007: Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623.  His Honour refused the applicant leave to rely on certain affidavit evidence which was filed out of time.  Leave to appeal will be refused.

2                     As is clear from the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, great restraint should be exercised in allowing leave to appeal in matters of practice and procedure. 

3                     I do not see any arguable case that his Honour’s discretion miscarried.  In particular, it was not necessary for him to make express reference to what was obviously common ground, namely that the evidence in question was relevant.  Nor was it necessary for him to restate the trite fact that there is a public interest in invalid patents not remaining on the register.

4                     The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 is not authority for the proposition that amendments, adjournments and other procedural indulgences must always be granted and that the balm of costs will always be sufficient.  In this case his Honour made findings of fact as to the prejudice that would be suffered by Black & Decker if this evidence was admitted.  Those findings were open to him.  His Honour was entitled to place considerable weight on the procedural record of GMCA.  Whether or not criticism can be launched in this regard at Black & Decker, the fact remains that time and again GMCA have sought to enlarge the case and produce further evidence without regard to the firm directions given by the Court.

5                     This case is not concerned with particularly arcane technology, for expert evidence concerning which the parties might have to search throughout the world.  It was incumbent on the parties to get their case in order long before now.  The integrity of the court process is an important issue on which his Honour was entitled to place great weight.  

6                     The application for leave to appeal from the interlocutory judgment of Finkelstein J is refused and the appellant’s motion dated 26 October 2007 is dismissed with costs.

Associate:

Dated:         2 November 2007