FEDERAL COURT OF AUSTRALIA

Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583

BITECH ENGINEERING v GARTH LIVING PTY LTD (ACN 111 145 432) and COHEN NOMINEES PTY LIMITED (ACN 008 526 994); GARTH LIVING PTY LTD (ACN 111 145 432) v BITECH ENGINEERING

NSD 1681 of 2006

BITECH ENGINEERING v BUNNINGS GROUP LIMITED (ACN 008 672 179)

NSD 43 of 2007

BITECH ENGINEERING v FLAMEGLOW PTY LTD (ACN 117 672 518); FLAMEGLOW PTY LTD (ACN 117 672 518) v BITECH ENGINEERING

NSD 105 of 2007

BITECH ENGINEERING v HOTPOINT (AUST) PTY LTD (ACN 082 599 086); HOTPOINT (AUST) PTY LTD (ACN 082 599 086) v BITECH ENGINEERING

NSD 2056 of 2007

FOSTER J

21 OCTOBER 2008

SYDNEY

THE COURT:

1.                  ORDERS that evidence in matters NSD 1681 of 2006, NSD 43 of 2007 and NSD 2056 of 2007 be evidence in NSD 105 of 2007, and vice versa.

2.                  STANDS over so much of the Amended Cross-Claim as alleges wrongful threats of patent infringement proceedings, being paragraphs 6 to 11 and prayers for relief 3 to 7, to be mentioned for further directions when judgment is handed down on liability.

3.                  ORDERS that costs of and occasioned by this application be reserved. 

4.                  DIRECTS that Flameglow Pty Ltd file and serve by no later than the close of business on Friday next, 24 October 2008, an affidavit from Dr Lorenzen in which the doctor sets out the precise surgery performed on Mr Ogilvie and the circumstances in which it was required, and a further affidavit from Mr Ogilvie himself which deals with the circumstances in which that surgery was required and explains why it was that the matter was not raised with me last week.

5.                  ORDERS that the Second Affidavit of Donald Ogilvie sworn on 17 October 2008 be rejected.

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

REASONS FOR RULINGS

1                     I will just give some brief reasons for what I am about to do.  By letter dated 17 October 2008, Mr Donald Ogilvie, who is the managing director of Flameglow Pty Ltd, wrote to me.  I did not read that letter before coming onto the bench yesterday.  When the matter was called on yesterday there was no appearance on behalf of Flameglow Pty Ltd, which is both the respondent and cross-claimant in proceedings number NSD 105 of 2007.  That matter was listed for hearing to commence yesterday, along with the other matters which have been listed for hearing.

2                     When the matter was called on, Senior Counsel for the applicant drew my attention to the letter and handed up a copy to me.  That letter will become MFI 3 and remain with the Court file.

3                     When the contents of that letter were drawn to my attention I made a direction requiring the solicitors for the applicant to communicate with Mr Ogilvie and seek to ensure that he understood what the position of the applicant was in respect of certain specified matters.  That direction appears to have been complied with.  I say that because there has been filed in Court an affidavit of Anthony James Conaghan sworn yesterday which appears to have annexed to it a letter along the lines of what I directed should be sent.  That affidavit will become MFI 4 and be placed with the Court file.

4                     These proceedings were mentioned before me on Tuesday, 14 October last.  The occasion for that listing was an application by Flameglow Pty Ltd to be permitted to rely upon certain affidavits which had been served late and outside the time limited by the Court’s prior directions.  On that occasion no mention was made to me of the possibility that Flameglow Pty Ltd would not be represented at the hearing nor was any mention made that Mr Ogilvie was that very day to undergo abdominal surgery.

5                     The letter which was sent to me last Friday had attached to it a common form medical certificate – when I say common form I mean the type of certificate that is given by general practitioners to employers seeking to support an absence from work.  That certificate was not satisfactory as an explanation for Mr Ogilvie’s absence from Court this week should his absence need to be explained. 

6                     When the matter was called on this morning, Mr Hall of counsel appeared for Flameglow Pty Ltd and indicated that he had been instructed to apply to have so much of the cross-claim brought by Flameglow Pty Ltd against the applicant which involves a claim for wrongful threats of patent infringement deferred until after delivery of judgment on liability.  The basis for that application was Mr Ogilvie’s illness.  Other procedural matters were raised and are not presently controversial.

7                     The matter was stood down in order to enable Mr Hall to make that application on a proper basis.  When the matter was called on at 2.15 pm, Mr Hall handed up to me an email apparently from Dr Bernd Lorenzen of the Adelaide Bariatric Centre which contained some information about Mr Ogilvie’s surgery.  Mr Hall also handed up to me an unsigned statement of Mr Ogilvie also dealing with that subject matter.  The email will become Exhibit FG1 on the application and the statement will be Exhibit FG2.

8                     The information in the latter two documents is such as to lead me to conclude that Mr Ogilvie is unable to travel to Sydney at the present time and will be unable to do so this week.  In those circumstances, given that his evidence is sought to be relied upon by Flameglow Pty Ltd in support of so much of its cross-claim as involves the wrongful threats claim, it seems to me that I should accede to Mr Hall’s application and I do so.

9                     Mr Hall has handed up to me a document which contains two paragraphs with draft orders.  They seem to me appropriate and I will make those orders in accordance with the document handed up to me which I will initial and place with the Court file. 

10                  I propose to reserve the costs of and occasioned by this application and I do so.  I indicate that, should it be necessary for the wrongful threats claim to be persisted in subsequent to the delivery of judgment on liability, questions may arise as to whether or not additional costs will have been visited upon the applicant by reason of the application made today.

11                  It is not meaningful to attempt at this point in time to anticipate all possible outcomes and this is the reason why I think that reserving costs is the best option.  However, should it be necessary for the wrongful threats claim to be dealt with in due course, I make it clear that it may well be appropriate for the applicant to make an application in respect of costs at that time.  I do not wish to confine the applicant in any particular way but it seems to me that various applications are potentially available.

12                  I also propose to direct Flameglow Pty Ltd to file and serve by no later than the close of business on Friday next, 24 October 2008, an affidavit from Dr Lorenzen in which the doctor sets out the precise surgery performed on Mr Ogilvie and the circumstances in which it was required, and a further affidavit from Mr Ogilvie himself which deals with the circumstances in which that surgery was required and explains why it was that the matter was not raised with me last week.

13                  After I delivered reasons in respect of Mr Hall’s application to defer the wrongful threats cross-claim, Mr Hall raised with me one further matter.  Mr Hall seeks to read an affidavit described as the Second Affidavit of Donald Ogilvie sworn on 17 October 2008 notwithstanding that Mr Ogilvie is both not here and not available in the short term for cross-examination.  Objection is taken to the whole of the affidavit by the applicant on the grounds of relevance.  When I asked Mr Hall what the relevance of the affidavit was he focused his submission on paragraph 5.  Paragraph 5 is in the following terms:

I am unable to indicate why some samples of the electric flame effect heaters obtained by the applicant had silver cylinders or silver drums.  I note that the first electric flame effect heater purchased by the applicant did not have a silvery cylinder or a silver drum.

14                  The applicant puts a case to the effect that some of the electric flame effect heaters sold by Flameglow Pty Ltd had silver cylinders.  In my view, paragraph 5 does not put a contrary position, but simply contains a musing from Mr Ogilvie to the effect that he could not explain why some had silver cylinders and some had a different type of cylinder.  The balance of the affidavit seems to me to be irrelevant.

15                  I propose to reject the entire affidavit.  I do so insofar as all paragraphs other than paragraph 5 are concerned on the basis that the material is irrelevant.  As far as paragraph 5 is concerned, I am of the view that the material is irrelevant or, alternatively, if it has some marginal relevance then it ought to be rejected under s 135 of the Evidence Act 1995 (Cth) because it would be unfairly prejudicial to the applicant or otherwise cause or result in an undue waste of time.

Associate:

Dated:         23 October 2008