Speedy Gantry Hire Pty Ltd (ACN 010 593 414) v Preston Erection Pty Ltd (ACN 003 991 062) & Anor [1997] FCA 78

Speedy Gantry Hire Pty Ltd (ACN 010 593 414) v Preston Erection Pty Ltd (ACN 003 991 062) & Anor [1997] FCA 78

Leave to amend was allowed because the proceeding had not yet been fixed for hearing, the proposed further particulars of invalidity were not said to be irrelevant or demonstrably futile and would have been appropriate if pleaded initially, and the prejudice and costs caused by the late amendment could be addressed by costs orders, close case management, a tight timetable, and possible allocation of a hearing date notwithstanding remaining interlocutory steps.

Jurisdiction
Australia
Judgment Date
10 February 1997
Procedural Posture
Patent Infringement Proceeding With Cross Claim for Revocation Under Section 121 of the Patents Act 1990 / Interlocutory Notice of Motion for Leave to File an Amended Cross Claim
Outcome
Motion allowed; leave to amend granted; costs basis reserved for further consideration.
Legal Topics
['patent Infringement' 'patent Validity and Revocation' 'inventive Step' 'novelty' 'amendment of Cross Claim' 'particulars of Invalidity' 'interlocutory Injunction' 'costs Thrown Away']
['intellectual Property' 'patent Law' 'civil Procedure' 'costs'] ['patent Infringement' 'patent Validity and Revocation' 'inventive Step' 'novelty' 'amendment of Cross Claim' 'particulars of Invalidity' 'interlocutory Injunction' 'costs Thrown Away']

Case Brief

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Procedural Posture

Patent Infringement Proceeding With Cross Claim for Revocation Under Section 121 of the Patents Act 1990 / Interlocutory Notice of Motion for Leave to File an Amended Cross Claim

Legal Issues

  1. 1 ['Whether the respondents/cross-claimants should be granted leave to file an amended cross-claim adding further particulars of invalidity based on Australian Letters Patent 573384, an annexed diagram, and the Preston Folding Scaffold.' "Whether delay, prejudice to the applicant's proposed sale of its business, and additional costs justified refusing leave to amend." 'Whether costs thrown away by the amendment should be payable, potentially on an indemnity basis.']

Ratio Decidendi

Leave to amend was allowed because the proceeding had not yet been fixed for hearing, the proposed further particulars of invalidity were not said to be irrelevant or demonstrably futile and would have been appropriate if pleaded initially, and the prejudice and costs caused by the late amendment could be addressed by costs orders, close case management, a tight timetable, and possible allocation of a hearing date notwithstanding remaining interlocutory steps.

Court Disposition

Motion allowed; leave to amend granted; costs basis reserved for further consideration.

Orders

  • ['Orders made in terms of paragraphs 1 to 13 inclusive of the short minutes of orders as amended and initialled by Lindgren J, dated 10 February 1997 and placed with the papers.' 'The question whether the costs referred to in paragraph 11 should be on an indemnity basis or a party and party basis was reserved for...