Federal Court of Australia
Group One Limited v GTE Gesellschraft Fur Technische Entwicklungen GMBH  FCA 767
QUD 786 of 2019
Date of judgment:
PRACTICE AND PROCEDURE – consideration of an application for an order requiring the respondents to nominate a new address for service, the respondents having withdrawn the instructions from their present solicitors
Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 37P
Federal Court Rules 2011 (Cth), rr 2.16, 11.01, 11.06, 11.07, 11.08 and 11.09
National Practice Area:
Patents and Associated Statutes
Number of paragraphs:
29 June 2022
Thomson Geer Lawyers
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The Applicant has leave to file the:
(a) Interlocutory Application dated 28 June 2022;
(b) Affidavit of Anthony James Conaghan sworn 28 June 2022; and
(c) Submissions dated 28 June 2022.
2. The Respondents file a Notice of Address for Service within the jurisdiction as required by the Federal Court Rules 2011 (Cth) rule 11.08.
3. The Applicant forward a sealed copy of this Order to the Respondents at the last known address at Im Brunnenrain 6, 74653 Ingelfingen, Germany by express post or some other suitable means.
4. After the expiry of 6 weeks from the date of dispatch of the sealed copy of this Order by express post or other suitable means to the Respondents, the Applicant have leave to proceed.
5. That if the Respondents have not complied with this Order and filed a Notice of Address of Service in Australia within 6 weeks from the date of dispatch of the sealed copy of this Order, that:
(a) the Respondents Defence filed 24 February 2020 be struck out; and
(b) Judgement be entered for the Applicant pursuant to the claims in the Amended Statement of Claim filed 7 February 2020 with damages, interest and costs to be assessed.
6. Costs reserved.
1 This proceeding is an interlocutory application for orders requiring the respondents to file a notice of address for service, consistent with the Rules of Court. The proceeding was the subject of an order made on 6 February 2020, granting the applicant leave to amend the originating application and statement of claim against both respondents. The originating application was amended on 11 February 2020, and the statement of claim was amended and filed on that date. On 24 February 2020, the respondents to the proceeding filed a defence to the amended statement of claim. The defence, of course, is framed in terms of an unconditional defence which purports to meet the allegations in the pleadings.
2 There is no suggestion of a conditional defence having been filed, and thus the respondents have submitted to the jurisdiction and the proceedings.
3 The first respondent to the proceeding is a German company called GTE Gesellschraft fur technische Entwicklungen GmbH, and the second respondent is Mr Ralf Weigel. The proceeding seeks declarations and other relief in relation to a particular patent. It is not necessary, in these short reasons, to recite the full scope of the relief. Further steps were taken in the proceeding on 24 April 2020 to issue a subpoena, and various orders were made by the Court granting the applicant in the proceeding, Group One Limited, the right to inspect and take copies of documents.
4 The immediate difficulty is that the solicitors on the record for the respondents have filed a document by which they recite that the respondents have terminated their retainer. Thus, the respondents are presently unrepresented. In order to advance the matter in an efficient and proper means, it is therefore necessary to ensure that the respondents complete the necessary documents and take steps which would enable the matter to be addressed properly within the jurisdiction in the context of the issues arising in the proceeding. There are a number of mechanisms which provide a source of power to make orders which would bring about that result.
5 The most important of them, ultimately is, ss 37M, 37N and 37P of the Federal Court of Australia Act 1976 (Cth) (the “Act”). Section 37M of the Act provides for an overarching purpose of civil practice and procedure provisions. And the overarching purpose of those provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Section 37N provides that the parties to a civil proceeding before the Court must conduct the proceeding in a way consistent with the overarching purpose, and thus the respondents must conduct their defence of the proceeding consistent with the overarching purpose.
6 Section 37P of the Act provides that, in relation to a civil proceeding before the Court, the Court or a judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of it, including parts such as this. Section 37P(3) provides that, without limiting the generality of subsection (2), a direction may be made to require things to be done. I propose to make directions under that section of the Act, to require things to be done. I will turn to the things to be done in a moment. Of course, the Rules of the Federal Court of Australia anticipate this sort of problem.
7 To begin with, the Rules at rule 2.16 require documents to be filed which identify the name of the party, the name of the person or a lawyer responsible for the preparation of the document, and also the telephone number, facsimile number, email address of the party and other such information. Rule 11.01 provides for an address for service, which must comply with rule 2.16. The Rules also address such questions of, when must the notice of address for service be filed, how it is to be filed, and the mechanism for changing an address for service: see rr 11.06, 11.07, 11.08 and 11.09.
8 In this case, of course, the solicitors for the respondents have had their instructions withdrawn. However, that does not mean that the respondents can, in effect, withdraw themselves from the proceeding. The proceeding is constituted. It is on foot. The respondents have submitted to the jurisdiction and they have pleaded to the allegations made against them. The proceeding must take its course in an efficient way, consistent with the overarching purpose.
9 Accordingly, I propose to make all of the orders sought by the applicant in the interlocutory application.