A'Van Campers Pty Ltd v Camoflag Pty Ltd [2003] FCA 353

A'Van Campers Pty Ltd v Camoflag Pty Ltd [2003] FCA 353

Although reasonably diligent enquiry at an earlier point would probably have resulted in most, if not all, of the amendments being made earlier, the amendments were explained and were not shown to be the product of neglect or lack of diligence. The applicant was aware of risks of further prior art and related amendments, the prior art and fair basis amendments related only to parts of the proceeding, and the inventorship and authorship particulars did not alone warrant an Earth Closet or See v Scott-Paine order. It was therefore inappropriate to make such a special costs order, but appropriate to grant leave to amend with ordinary amendment costs thrown away payable by the respondent and...

Jurisdiction
Australia
Judgment Date
23 April 2003
Procedural Posture
Patent and Registered Design Infringement Proceeding With Cross Claim for Revocation on Invalidity Grounds / Respondent's Motion for Leave to Amend Defence, Cross Claim and Particulars of Invalidity
Outcome
Leave to amend granted; Earth Closet or See v Scott-Paine costs order refused; costs ordered as specified.
Legal Topics
['amendment of Particulars of Invalidity' 'earth Closet Order' 'see V Scott Paine Order' 'prior Art' 'fair Basis' 'inventorship and Authorship' 'costs of Amendments']
['intellectual Property' 'patents' 'registered Designs' 'civil Procedure' 'costs'] ['amendment of Particulars of Invalidity' 'earth Closet Order' 'see V Scott Paine Order' 'prior Art' 'fair Basis' 'inventorship and Authorship' 'costs of Amendments']

Case Brief

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Procedural Posture

Patent and Registered Design Infringement Proceeding With Cross Claim for Revocation on Invalidity Grounds / Respondent's Motion for Leave to Amend Defence, Cross Claim and Particulars of Invalidity

Legal Issues

  1. 1 ['Whether the respondent should have leave to amend its defence, cross-claim and Particulars of Invalidity.' 'Whether leave to amend should be conditioned by an Earth Closet or See v Scott-Paine order.' 'Whether reasonably diligent enquiries would have disclosed the additional prior art and other defences earlier.' 'Whether the applicant was taken by surprise by the proposed amendments.' 'What costs orders should be made in respect of the amendments and the motion.']

Ratio Decidendi

Although reasonably diligent enquiry at an earlier point would probably have resulted in most, if not all, of the amendments being made earlier, the amendments were explained and were not shown to be the product of neglect or lack of diligence. The applicant was aware of risks of further prior art and related amendments, the prior art and fair basis amendments related only to parts of the proceeding, and the inventorship and authorship particulars did not alone warrant an Earth Closet or See v Scott-Paine order. It was therefore inappropriate to make such a special costs order, but appropriate to grant leave to amend with ordinary amendment costs thrown away payable by the respondent and...

Court Disposition

Leave to amend granted; Earth Closet or See v Scott-Paine costs order refused; costs ordered as specified.

Orders

  • ['The respondent have leave to amend its defence, cross-claim and Particulars of Invalidity in the manner set out in Exhibit "JST 1" to the affidavit of James Stefan Tobin sworn on 19 December 2002.' "The respondent pay the applicant's costs thrown away by reason of the amendments." "The applicant pay 75 per cent of...