Visible Results Properties Inc v Sushi Train (Australia) Pty Limited [2005] FCA 1159

Visible Results Properties Inc v Sushi Train (Australia) Pty Limited [2005] FCA 1159

Because the joinder of Visible Results Asia Pacific Limited was not substantively opposed, it should be joined and the pleadings amended. The asserted defects concerning ownership, registration and licensing were substantive or potentially evidential matters suitable for determination at trial, not grounds for summary strike out or for separate determination under Order 29, and separating them would risk confusion and delay. The respondent's motions were therefore dismissed and the matter was directed toward preparation for trial.

Jurisdiction
Australia
Judgment Date
23 August 2005
Procedural Posture
Patent Proceeding Involving Interlocutory Applications for Joinder, Amendment, Strike Out, Rectification of the Register of Patents and Separate Questions / Interlocutory Motions and Directions
Outcome
Visible Results Asia Pacific Limited joined as third applicant; applicants granted leave to amend pleadings; respondent's motions dismissed; costs of respondent's motions reserved; directions made for preparation of an Issues and Steps for Trial document.
Legal Topics
['joinder of Parties' 'amendment of Pleadings' 'strike Out' 'separate Questions' 'rectification of the Register of Patents' 'case Management' 'duty of Parties to Co Operate']
['practice and Procedure' 'patents'] ['joinder of Parties' 'amendment of Pleadings' 'strike Out' 'separate Questions' 'rectification of the Register of Patents' 'case Management' 'duty of Parties to Co Operate']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Patent Proceeding Involving Interlocutory Applications for Joinder, Amendment, Strike Out, Rectification of the Register of Patents and Separate Questions / Interlocutory Motions and Directions

Legal Issues

  1. 1 ['Whether Visible Results Asia Pacific Limited should be joined as third applicant and the pleadings amended to incorporate it.' 'Whether the claims of the first applicant and second applicant should be struck out or dismissed because of issues concerning ownership, registration and exclusive licensing of Australian patent no 748796.' 'Whether issues concerning entitlement to be registered as patentee, exclusive licensee status and rectification of the Register of Patents should be determined as separate questions under Order 29.' 'How the parties should prepare the matter for trial consistently with their duties of co-operation and proportionate use of court resources.']

Ratio Decidendi

Because the joinder of Visible Results Asia Pacific Limited was not substantively opposed, it should be joined and the pleadings amended. The asserted defects concerning ownership, registration and licensing were substantive or potentially evidential matters suitable for determination at trial, not grounds for summary strike out or for separate determination under Order 29, and separating them would risk confusion and delay. The respondent's motions were therefore dismissed and the matter was directed toward preparation for trial.

Court Disposition

Visible Results Asia Pacific Limited joined as third applicant; applicants granted leave to amend pleadings; respondent's motions dismissed; costs of respondent's motions reserved; directions made for preparation of an Issues and Steps for Trial document.

Orders

  • ['Pursuant to Order 6 Rule 8 Visible Results Asia Pacific Limited is joined as third applicant to the proceeding.' 'Pursuant to Order 13 Rule 2 the applicants are granted leave to amend their Statement of Claim, Reply and Defence to Cross-Claim to incorporate the third applicant in the pleadings.' 'The applicants...