BALLANCE AGRI-NUTRIENTS LIMITED V RAVENSDOWN FERTILISER CO-OPERATIVE LIMITED & LINCOLN UNIVERSITY HC AK CIV-2009-404-002171

BALLANCE AGRI-NUTRIENTS LIMITED V RAVENSDOWN FERTILISER CO-OPERATIVE LIMITED & LINCOLN UNIVERSITY HC AK CIV-2009-404-002171 26 August 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-002171BETWEEN BALLANCE AGRI-NUTRIENTS LIMITED Applicant AND RAVENSDOWN FERTILISER CO- OPERATIVE LIMITED & LINCOLN UNIVERSITY Respondent Hearing: 23-25 August 2010 Appearances: B W F Brown QC, K W McLeod and A M Bakerfor Appellant J G Miles QC and R M Wallis for Respondent Judgment: 26 August 2010 at 4:30 pmJUDGMENT OF COURTNEY J [Leave to amend Notice of Appeal]This judgment was delivered by Justice Courtney on 26 August 2010 at 4:30 pm pursuant to R 11.5 of the High Court Rules. Registrar / Deputy Registrar Date. Solicitors: A J Park, P O Box 565, Auckland Fax: (09) 356-6990 – K McLeod / A Baker Baldwins Law Limited, P O Box 5999 Wellesley Street, Auckland 1141 Fax: (09) 373-2123 – R WallisCounsel: B W F Brown QC, P O Box 5161, Lambton Quay, Wellington 6015 Fax: (04) 472-0646 J G Miles QC, P O Box 4338 Shortland Street, Auckland 1140 Fax: (09) 366-1599[1] At the outset of the hearing of this appeal I was asked to determine an application by the appellant, Ballance Agri-Nutrients Limited, for leave to amend its Notice of Appeal. The additional grounds of appeal sought to be included in the Notice of Appeal were that:[21] That the invention, so far as claimed in any claim of complete specification of the Opposed Specification, was used in New Zealand before the priority date of that claim, not only by Cookson and Cornforth as referred to in ground 10 above, but also by Trevor Saunders in early 2001 in the manner described in the new evidence, the subject of the consent order dated 11 February 2010. [22] That the invention, so far as claimed in any claim of the complete specification of the Opposed Specification, was published in New Zealand before the priority date of that claim by the SupaCrop brochure from 22 July 2002.[2] The background to this application lay in an application by Ballance for leave to file further evidence in support of the appeal filed in December 2009. That application related to new evidence discovered by Ballance after the Assistant Commissioner's decision had been delivered and included evidence from Mr Saunders as to his use of the product SupaCrop as a nitrate inhibitor which he applied to the whole of the grazed pasture of his farm in 2001. Ravensdown did not oppose that application but sought to have an opportunity to reply. In February 2010 consent orders were made granting Ballance leave to file the additional evidence, including that of Mr Saunders, allowing Ravensdown to file evidence in answer and Ballance to file evidence strictly in reply. An issue arose subsequently as to the extent of Ballance's reply evidence but that is not relevant for present purposes. [3] Surprisingly, Ballance did not seek to amend its Notice of Appeal at the same time as it obtained leave to adduce further evidence. Equally surprisingly, Ravensdown did not request an amended Notice of Appeal to reflect the issue of prior use raised by Mr Saunders' evidence. So it was that the parties came to argue the appeal on the basis of Ballance's original Notice of Appeal, which made no mention of s 21(1)(d) under which a party opposing the grant of a patent may raise the fact that a claim of the complete specification had been used in New Zealand before the priority date.[4] Mr Miles QC, opposing Ballance's application, accepted that he would not be embarrassed by having to deal with the prior use argument arising from Mr Saunders' evidence but nevertheless did not accept that the grounds of appeal should be allowed to be expanded to include that ground. [5] Mr Miles also objected to Ballance's reliance on the Cookson/Cornforth paper in relation to prior use. He submitted that in the pleadings and before the Assistant Commissioner the paper had been referred to in a list of prior publications but ultimately not relied on as a prior publication. Nor had it been relied on as prior use, the only aspect of prior use pleaded and argued before the Assistant Commissioner being the sale of DIDIN. However, at [064] of his decision, the Assistant Commissioner specifically referred to alleged prior use being that of the Cookson/Cornforth work. This was referred to separately from the significance of the paper in relation to prior publication. Further, in the original Notice of Appeal at paragraphs 9 and 10 there is specific reference to the Cookson/Cornforth paper and, in particular, to the Assistant Commissioner's decision at [067]. Mr Miles accepted that paragraphs 9 and 10 of the original Notice of Appeal did accurately cover the prior use issue arising from the Cookson/Cornforth paper and Ravensdown's only complaint was the failure to refer specifically to s 21(1)(d). [6] It was apparent to me that Ravensdown was fairly on notice as to the prior use argument that was intended to be advanced in the appeal and would not be prejudiced by allowing the amended Notice of Appeal to be filed. The application was therefore allowed. ____________________ P Courtney J