Brivis Australia Pty Ltd v Seeley International Pty Ltd [2002] FCA 843

Brivis Australia Pty Ltd v Seeley International Pty Ltd [2002] FCA 843

The Court exercised its discretion by reference to both See v Scott-Paine principles and the general discretion on discontinuance and costs under O 22. Seeley could not reasonably have discovered the Heatshield device when it filed its original particulars, but it unreasonably delayed after learning of the device in August 2000 before amending its particulars and serving evidence. Brivis also delayed by not seeking particulars, inspection or a protective costs order after receiving the proposed amended particulars in April 2001. Because both parties were responsible for delay, the appropriate course was to adjourn the application for six weeks and, if Brivis elected to discontinue within...

Jurisdiction
Australia
Judgment Date
03 July 2002
Procedural Posture
Patent Infringement Proceeding and Cross Claim for Revocation of Australian Petty Patent No 706726 / Interlocutory Notice of Motion by the Applicant Seeking to Prevent Reliance on Affidavits or Alternatively a See V Scott Paine Type Order Permitting Discontinuance With Costs Protection
Outcome
Further consideration of the proceedings was adjourned for six weeks, with liberty to apply thereafter; formal orders about discontinuance and costs were deferred pending Brivis' election.
Legal Topics
['petty Patent Validity' 'prior Art' 'lack of Novelty' 'leave to Discontinue' 'see V Scott Paine Order' 'costs Discretion' 'supplementary Discovery']
['patents' 'civil Procedure' 'costs'] ['petty Patent Validity' 'prior Art' 'lack of Novelty' 'leave to Discontinue' 'see V Scott Paine Order' 'costs Discretion' 'supplementary Discovery']

Case Brief

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Procedural Posture

Patent Infringement Proceeding and Cross Claim for Revocation of Australian Petty Patent No 706726 / Interlocutory Notice of Motion by the Applicant Seeking to Prevent Reliance on Affidavits or Alternatively a See V Scott Paine Type Order Permitting Discontinuance With Costs Protection

Legal Issues

  1. 1 ['Whether Seeley should be prevented from relying on affidavits concerning the Heatshield device as prior art.' 'Whether Brivis should be given time to discontinue the proceeding and consent to revocation of the patent with protection from an adverse costs order.' 'What costs regime should apply if Brivis elects to discontinue after Seeley introduced evidence of the Heatshield device.' "Whether the parties' respective delays affected the exercise of the Court's discretion on discontinuance and costs."]

Ratio Decidendi

The Court exercised its discretion by reference to both See v Scott-Paine principles and the general discretion on discontinuance and costs under O 22. Seeley could not reasonably have discovered the Heatshield device when it filed its original particulars, but it unreasonably delayed after learning of the device in August 2000 before amending its particulars and serving evidence. Brivis also delayed by not seeking particulars, inspection or a protective costs order after receiving the proposed amended particulars in April 2001. Because both parties were responsible for delay, the appropriate course was to adjourn the application for six weeks and, if Brivis elected to discontinue within...

Court Disposition

Further consideration of the proceedings was adjourned for six weeks, with liberty to apply thereafter; formal orders about discontinuance and costs were deferred pending Brivis' election.

Orders

  • ['Further consideration of these proceedings is adjourned to a date subsequent to the expiration of a period of six weeks from the date hereof.' 'Liberty to the parties to apply, thereafter, to have the matter brought on for further consideration upon seven days notice.']