CQMS Pty Ltd v Simco Mining Products and Services Pty Ltd (No 2) [2017] FCA 1636

CQMS Pty Ltd v Simco Mining Products and Services Pty Ltd (No 2) [2017] FCA 1636

The respondent had not filed and served an amended defence and any cross-claim as ordered, had no satisfactory explanation for the continuing delay after February 2017, and had adequate opportunity since July 2017 to rectify the position. The respondent advanced no persuasive reason, including the Court's listing of the matter or the existence of a cross-claim, for refusing the orders. Accordingly, default orders under r 5.23 were appropriate, with default relief framed by reference to the pleaded claim.

Jurisdiction
Australia
Judgment Date
11 October 2017
Procedural Posture
Application for Judgment by Default or Orders on Default Pursuant to R 5.23 of the Federal Court Rules 2011 (cth) in an Intellectual Property Patents Proceeding / Case Management Hearing/application After the Respondent Failed to Comply With Orders to File and Serve an Amended Defence and Any Cross Claim
Outcome
Orders made requiring the respondent to file and serve an amended defence and any cross-claim by 4.00 pm on 2 November 2017, with self-executing default consequences if it did not comply; applicants' costs of the application ordered to be costs in the cause.
Legal Topics
['default Judgment' 'orders on Default' 'non Compliance With Court Orders' 'patent Infringement' 'cross Claim']
['practice and Procedure' 'intellectual Property' 'patents'] ['default Judgment' 'orders on Default' 'non Compliance With Court Orders' 'patent Infringement' 'cross Claim']

Case Brief

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Procedural Posture

Application for Judgment by Default or Orders on Default Pursuant to R 5.23 of the Federal Court Rules 2011 (cth) in an Intellectual Property Patents Proceeding / Case Management Hearing/application After the Respondent Failed to Comply With Orders to File and Serve an Amended Defence and Any Cross Claim

Legal Issues

  1. 1 ['Whether judgment by default or orders on default should be made under r 5.23 of the Federal Court Rules 2011 (Cth) because the respondent had not filed and served an amended defence and any cross-claim as previously ordered.' 'Whether any default order should be framed by reference to the face of the statement of claim rather than evidence that might be called at trial.' "Whether the existence of a cross-claim or the Court's listing of the matter provided a reason not to make the orders sought."]

Ratio Decidendi

The respondent had not filed and served an amended defence and any cross-claim as ordered, had no satisfactory explanation for the continuing delay after February 2017, and had adequate opportunity since July 2017 to rectify the position. The respondent advanced no persuasive reason, including the Court's listing of the matter or the existence of a cross-claim, for refusing the orders. Accordingly, default orders under r 5.23 were appropriate, with default relief framed by reference to the pleaded claim.

Court Disposition

Orders made requiring the respondent to file and serve an amended defence and any cross-claim by 4.00 pm on 2 November 2017, with self-executing default consequences if it did not comply; applicants' costs of the application ordered to be costs in the cause.

Orders

  • ['The name of the respondent appearing on the Court heading of documents filed in this proceeding be changed to "Simco Mining Products and Services Pty Ltd ACN 143 658 100".' 'The respondent file and serve an amended defence and any cross-claim by 4.00 pm on 2 November 2017.' "In the event that the respondent does...