Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 2) [2022] FCA 88

Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 2) [2022] FCA 88

Leave was appropriate because the Applicants were not prejudiced: they could cross-examine Mr Wilkinson at trial about the Documents and make submissions as to weight. The Documents had first been put into evidence by the Applicants through their infringement evidence in chief without qualification, the Respondents' experts had responded to that evidence, and three of the four experts referred to the Test Chart in the joint expert report as a basis for their opinions. It was therefore not a matter of simply excising references to the Documents and allowing the opinions to stand.

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Interlocutory Application for Leave to Rely on Evidence Under Rule 34.50(2)(b) of the Federal Court Rules 2011 (cth) in a Patent Infringement Proceeding / Application Heard on 8 February 2022; Judgment and Orders Made on 17 February 2022
Outcome
Leave granted to the Respondents under rule 34.50(2)(b) of the Federal Court Rules 2011 (Cth); costs reserved.
Legal Topics
['leave to Rely on Evidence Relating to Experiments' 'federal Court Rules 2011 (cth) R 34.50' 'patent Infringement Evidence' 'expert Evidence' 'prejudice']
['evidence' 'intellectual Property' 'patents'] ['leave to Rely on Evidence Relating to Experiments' 'federal Court Rules 2011 (cth) R 34.50' 'patent Infringement Evidence' 'expert Evidence' 'prejudice']

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Procedural Posture

Interlocutory Application for Leave to Rely on Evidence Under Rule 34.50(2)(b) of the Federal Court Rules 2011 (cth) in a Patent Infringement Proceeding / Application Heard on 8 February 2022; Judgment and Orders Made on 17 February 2022

Legal Issues

  1. 1 ['Whether the Respondents should be granted leave under rule 34.50(2)(b) of the Federal Court Rules 2011 (Cth) to tender evidence relating to test results and documents said to concern experiments.' 'Whether the Applicants would suffer prejudice if leave were granted in respect of sub-paragraphs 4(c) and 4(d) of the Hejleh 1 Affidavit and pages 7 and 8 of Confidential Exhibit KH-1.' 'Whether references to the Documents could simply be excised from affidavits and the joint expert report.']

Ratio Decidendi

Leave was appropriate because the Applicants were not prejudiced: they could cross-examine Mr Wilkinson at trial about the Documents and make submissions as to weight. The Documents had first been put into evidence by the Applicants through their infringement evidence in chief without qualification, the Respondents' experts had responded to that evidence, and three of the four experts referred to the Test Chart in the joint expert report as a basis for their opinions. It was therefore not a matter of simply excising references to the Documents and allowing the opinions to stand.

Court Disposition

Leave granted to the Respondents under rule 34.50(2)(b) of the Federal Court Rules 2011 (Cth); costs reserved.

Orders

  • ['The Respondents are granted leave under rule 34.50(2)(b) of the Federal Court Rules 2011 (Cth) to tender as evidence in the proceeding the test results contained in Confidential Exhibit BW-1 to the Affidavit of Brett Wilkinson sworn 24 December 2020.' 'The Respondents are granted leave to tender the methodology...