Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd [1995] FCA 271

Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd [1995] FCA 271

The Commissioner failed to show that he was not a proper party or that the pleaded claim disclosed no reasonable cause of action or tended to cause embarrassment or delay. The respondent sought mandamus and prohibition against the Commissioner, making him a necessary and proper party. The availability of AD(JR) Act review or other Patents Act mechanisms did not exclude s 39B jurisdiction, and Patents Act 1990 s 20(2) did not immunise the Commissioner from prerogative relief. The Commissioner’s motion was therefore dismissed, and leave nunc pro tunc was granted to the extent necessary for the respondent/cross-claimant’s pleadings against the Commissioner.

Jurisdiction
Australia
Judgment Date
28 April 1995
Procedural Posture
Patent Infringement Proceeding With Cross Claim for Declarations, Revocation and Prerogative Relief Concerning Australian Petty Patent No 649,946 and Australian Standard Patent No 639,089 / Interlocutory Motions by the Commissioner of Patents to Be Removed or to Strike Out, Dismiss or Stay the Cross Claim, and by the Respondent/cross Claimant for Leave Nunc Pro Tunc to File and Serve Pleadings Against the Commissioner
Outcome
The Commissioner of Patents' motion filed on 8 March 1995 was dismissed. The respondent/cross-claimant was granted leave nunc pro tunc to file and serve pleadings against the Commissioner to the extent necessary. The Commissioner was ordered to pay the respondent/cross-claimant's costs of the Commissioner's motion,...
Legal Topics
['patents' 'patent Validity and Revocation' 'patents Act 1990 S 64(2)' 'prerogative Relief' 'judiciary Act 1903 S 39 B' 'strike Out and Removal of Party' 'leave Nunc Pro Tunc']
['intellectual Property' 'administrative Law' 'federal Court Procedure'] ['patents' 'patent Validity and Revocation' 'patents Act 1990 S 64(2)' 'prerogative Relief' 'judiciary Act 1903 S 39 B' 'strike Out and Removal of Party' 'leave Nunc Pro Tunc']

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Procedural Posture

Patent Infringement Proceeding With Cross Claim for Declarations, Revocation and Prerogative Relief Concerning Australian Petty Patent No 649,946 and Australian Standard Patent No 639,089 / Interlocutory Motions by the Commissioner of Patents to Be Removed or to Strike Out, Dismiss or Stay the Cross Claim, and by the Respondent/cross Claimant for Leave Nunc Pro Tunc to File and Serve Pleadings Against the Commissioner

Legal Issues

  1. 1 ['Whether the Commissioner of Patents should be removed as a party or whether the cross-claim against the Commissioner should be dismissed, struck out or stayed.' 'Whether alleged non-compliance with Patents Act 1990 s 64(2) could support relief, including revocation or prerogative relief.' 'Whether the availability of review under the Administrative Decisions (Judicial Review) Act 1977 or other mechanisms in the Patents Act 1990 precluded the respondent from seeking prerogative relief under Judiciary Act 1903 s 39B.' 'Whether Patents Act 1990 s 20(2) excluded prerogative relief against the Commissioner.' 'Whether the respondent/cross-claimant should have leave nunc pro tunc to file and serve its defence and cross-claim and amended defence and amended cross-claim against the Commissioner.']

Ratio Decidendi

The Commissioner failed to show that he was not a proper party or that the pleaded claim disclosed no reasonable cause of action or tended to cause embarrassment or delay. The respondent sought mandamus and prohibition against the Commissioner, making him a necessary and proper party. The availability of AD(JR) Act review or other Patents Act mechanisms did not exclude s 39B jurisdiction, and Patents Act 1990 s 20(2) did not immunise the Commissioner from prerogative relief. The Commissioner’s motion was therefore dismissed, and leave nunc pro tunc was granted to the extent necessary for the respondent/cross-claimant’s pleadings against the Commissioner.

Court Disposition

The Commissioner of Patents' motion filed on 8 March 1995 was dismissed. The respondent/cross-claimant was granted leave nunc pro tunc to file and serve pleadings against the Commissioner to the extent necessary. The Commissioner was ordered to pay the respondent/cross-claimant's costs of the Commissioner's motion,...

Orders

  • ["The second cross-respondent's notice of motion filed on 8 March 1995 be dismissed." 'The second cross-respondent pay the costs of the respondent/cross-claimant of the motion.' 'To the extent that leave may be necessary, the respondent/cross-claimant have leave to file and serve against the second cross respondent...