Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623

Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623

Leave was refused because the respondent's non-compliance with the timetable was not excusable. The additional affidavits introduced new prior art and added to the respondent's evidence in chief despite orders requiring evidence by specified dates and despite the trial having already been vacated once. Granting leave would require the trial to be vacated again, causing unfair prejudice to the applicants, inconvenience to the court, and prejudice to other litigants.

Jurisdiction
Australia
Judgment Date
26 October 2007
Procedural Posture
Patent and Design Infringement Proceeding With Counterclaim for Revocation of the Patent and Design / Application for Leave to Rely on Additional Affidavit Material Filed Outside the Timetable
Outcome
Leave to rely on the additional affidavit material was refused.
Legal Topics
['timetable for Filing Evidence' 'extension of Time' 'leave to Rely on Late Evidence' 'prejudice to Opposite Party' 'patent and Design Infringement' 'revocation' 'want of Novelty' 'prior Art']
['practice and Procedure' 'intellectual Property'] ['timetable for Filing Evidence' 'extension of Time' 'leave to Rely on Late Evidence' 'prejudice to Opposite Party' 'patent and Design Infringement' 'revocation' 'want of Novelty' 'prior Art']

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Procedural Posture

Patent and Design Infringement Proceeding With Counterclaim for Revocation of the Patent and Design / Application for Leave to Rely on Additional Affidavit Material Filed Outside the Timetable

Legal Issues

  1. 1 ['Whether the respondent should be given leave to rely on paragraphs 16-25, 34 and 38 of the affidavit of Stephen Bloom sworn on 29 September 2007 and the affidavit of Christopher David Barrett affirmed on 4 October 2007.' "Whether the respondent's non-compliance with the evidence timetable was excusable." "Whether granting leave would unfairly prejudice the applicants, other litigants, and the court's management of the proceeding."]

Ratio Decidendi

Leave was refused because the respondent's non-compliance with the timetable was not excusable. The additional affidavits introduced new prior art and added to the respondent's evidence in chief despite orders requiring evidence by specified dates and despite the trial having already been vacated once. Granting leave would require the trial to be vacated again, causing unfair prejudice to the applicants, inconvenience to the court, and prejudice to other litigants.

Court Disposition

Leave to rely on the additional affidavit material was refused.

Orders

  • ['Leave to rely on paragraphs 16-25, 34 and 38 of the affidavit of Stephen Bloom sworn on 29 September 2007 and on the affidavit of Christopher David Barrett affirmed on 4 October 2007 be refused.' "The respondent pay the applicants' costs of the application for leave other than the costs of the day."]