FEDERAL COURT OF AUSTRALIA Caterpillar Inc v John Deere Ltd [2001] FCA 306 CATERPILLAR INC v JOHN DEERE LTD AND OTHERS NO VG 739 OF 1997 HEEREY J 23 FEBRUARY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 739 OF 1997 BETWEEN: CATEPILLAR INC APPLICANT AND: JOHN DEERE LTD AND OTHERS (ACN 008 671 725) RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 23 FEBRUARY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: As per Court file. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 739 OF 1997 BETWEEN: CATEPILLAR INC APPLICANT AND: JOHN DEERE LTD AND OTHERS (ACN 008 671 725) RESPONDENT JUDGE: HEEREY J DATE: 23 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 I think the starting point is that it is clear the evidence of Mr Grawey is material and that he is not willing or able to come to Australia. That being so, the interests of justice are obviously served by having a witness who can give material evidence give that evidence. So a case has been made out, I think, for the exercise of an order under s 7(1) of the Foreign Evidence Act 1994 (Cth). The practical problem which arises is the operation of that order in relation to the commencement of the trial which has been fixed some time ago to commence on 14 May. I think the order should be made. I will say something in a moment about the form of it. I do not think I should decline to make an order, the basis for which has otherwise been satisfied, because of apprehensions about the ability of the parties, and in particular the applicant, to be ready, which of necessity must be hypothetical at the moment. 2 I think that the better course is to make the order and let the respondent proceed, no doubt with due dispatch as it will, and review the situation in the light of what actually happens. I cannot also overlook the fact that the subject matter of Mr Grawey's evidence has been well-known to both sides for a long time and indeed he, although not perhaps technically within the Caterpillar camp at the moment, was the inventor when employed by Caterpillar and the subject matter of the evidence he gave has been known to Caterpillar for a long time. So I would make the order and fix a date for the review of progress by adjourning the summons for directions to a month hence, that is on 23 March. In the meantime, amongst other things, Caterpillar can turn its mind in particular to the subject matter of Mr Grawey's evidence which, of course, they already know from the American depositions and at least get to the stage where they have evidence ready on the assumption that any evidence Mr Grawey gives will be basically in accordance with the depositions he has already given. 3 The other matter which the parties may wish to pursue is the alternative that was mentioned in the course of argument, that is examination before a judge of this court under s 7(1)(a) and in particular, whether any and what approval of American authorities are required and how long that would take and would need to be examined, but it is conceivable that could be a quicker course. As to the form of the order, I think the appropriate limitation of the matters about which Mr Grawey is to be examined are the particulars, so I accept what Mr Caine says as to that extent, but I do not think there should be some "grab‑all" clause, it should be cross‑examination about the particulars of those four matters referred to in the cross-claim and that is all. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 March 2001 Counsel for the Applicant: Mr D Shavin QC Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr B N Caine with Mr G J Fitzgerald Solicitor for the Respondent: Davies Collison Cave Date of Hearing: 23 February 2001 Date of Judgment: 23 February 2001