Dyno Wesfarmers Ltd v Orica Australia Pty Ltd [1999] FCA 554

FEDERAL COURT OF AUSTRALIA

Dyno Wesfarmers Ltd v Orica Australia Pty Ltd [1999] FCA 554 DYNO WESFARMERS LIMITED (ACN 003 269 010) AND DYNO NOBEL INC v ORICA AUSTRALIA PTY LIMITED (FORMERLY ICI AUSTRALIA OPERATIONS PTY LIMITED (ACN 004 117 828)) QG 47 OF 1996 DOWSETT J 23 APRIL 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 47 OF 1996

BETWEEN: DYNO WESFARMERS LIMITED (ACN 003 269 010)

First Applicant

DYNO NOBEL INC

Second Applicant

AND: ORICA AUSTRALIA PTY LIMITED (FORMERLY ICI AUSTRALIA OPERATIONS PTY LIMITED (ACN 003 117 828))

Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 23 APRIL 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The proposed questions are inadmissible on the pleadings as they presently stand. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 47 OF 1996

BETWEEN: DYNO WESFARMERS LIMITED (ACN 003 269 010)

First Applicant

DYNO NOBEL INC

Second Applicant

AND: ORICA AUSTRALIA PTY LIMITED (FORMERLY ICI AUSTRALIA OPERATIONS PTY LIMITED (ACN 004 117 828))

Respondent

JUDGE: DOWSETT J

DATE: 23 APRIL 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 We have, for the whole of today, been concerned in arguing a question of admissibility of evidence arising out of questions asked of one of the respondent's witnesses by counsel for the applicant. The questions relate to the witness's knowledge of incidents of supply by the respondent to other parties of AN emulsifier explosives mixed with urea, preliminary to a line of questioning which, I think it is common ground, would identify the frequency of such supplies. This line of questioning was objected to by the respondent upon the basis that it was, in effect, going to incidents of alleged infringement of the patent, which issue has been separated in the conduct of the trial, so that I am presently only concerned with the question of validity of the patent. 2 The applicant seeks to justify the line of questioning upon the basis that it is seeking to demonstrate industry acceptance of a product such as that the subject of the patent as a solution to a well-known problem in the explosives industry.