Sheiman Ultrasonic Research Foundation Pty Ltd v Novapharm Research (Australia) Pty Limited [2008] FCA 1902

Sheiman Ultrasonic Research Foundation Pty Ltd v Novapharm Research (Australia) Pty Limited [2008] FCA 1902

The applicants failed to prosecute the matter with due diligence by not providing ordered security for costs, not filing a proper further amended statement of claim within the time allowed, producing only a manifestly deficient fourth attempt at pleading the case on the day before the hearing, and giving no satisfactory evidence or explanation for those failures or for any real prospect of funding or proper prosecution of the claim. In those circumstances, dismissal under O 35A r 3 was justified, with indemnity costs fixed for the respondents.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Intellectual Property Proceeding / Respondents' Applications to Dismiss the Proceeding With Costs Pursuant to O 35 a R 3(1)(a) of the Federal Court Rules
Outcome
Proceedings dismissed with indemnity costs.
Legal Topics
['dismissal for Default' 'failure to Prosecute With Due Diligence' 'failure to Comply With Court Orders' 'security for Costs' 'defective Pleadings' 'indemnity Costs']
['intellectual Property' 'civil Procedure' 'costs'] ['dismissal for Default' 'failure to Prosecute With Due Diligence' 'failure to Comply With Court Orders' 'security for Costs' 'defective Pleadings' 'indemnity Costs']

Case Brief

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Procedural Posture

Intellectual Property Proceeding / Respondents' Applications to Dismiss the Proceeding With Costs Pursuant to O 35 a R 3(1)(a) of the Federal Court Rules

Legal Issues

  1. 1 ['Whether the applicants were in default by failing to prosecute the proceeding with due diligence.' 'Whether the proceeding should be dismissed under O 35A r 3(1)(a) of the Federal Court Rules.' "Whether the applicants' failure to provide ordered security for costs and to file an intelligible amended statement of claim justified dismissal." 'Whether indemnity costs should be awarded and fixed.']

Ratio Decidendi

The applicants failed to prosecute the matter with due diligence by not providing ordered security for costs, not filing a proper further amended statement of claim within the time allowed, producing only a manifestly deficient fourth attempt at pleading the case on the day before the hearing, and giving no satisfactory evidence or explanation for those failures or for any real prospect of funding or proper prosecution of the claim. In those circumstances, dismissal under O 35A r 3 was justified, with indemnity costs fixed for the respondents.

Court Disposition

Proceedings dismissed with indemnity costs.

Orders

  • ['The proceedings be dismissed.' "The applicants are to pay the respondents' costs on an indemnity basis." 'In the case of the first to eighth respondents the costs are fixed at $60,000.' 'In the case of the ninth respondent the costs are fixed at $70,000.']