Lexmark International, Inc. v Boomerang Imaging Supplies Pty Ltd [2001] FCA 833

FEDERAL COURT OF AUSTRALIA

Lexmark International, Inc. v Boomerang Imaging Supplies Pty Ltd [2001] FCA 833 PRACTICE & PROCEDURE – experiments – where applicants claim first respondent has refilled applicants' empty toner cartridges – where cartridges have been offered for sale – where applicants claim first respondent has infringed applicants' registered trade mark – where applicants claim first respondent has engaged in conduct which contravenes s 52 of Trade Practices Act 1974 – where applicants have acquired offending cartridges – where print tests have been performed on cartridges – where cartridges have been weighed – whether print tests and weighing cartridges constitutes "experimental proof" contemplated by Order 58 Rule 31 of Federal Court Rules – whether leave should be granted to admit evidence of print tests and weighing Federal Court Rules Order 58 Rule 31 LEXMARK INTERNATIONAL, INC & ANOR v BOOMERANG IMAGING SUPPLIES PTY LTD (ACN 084 102 885) & ORS N 1398 OF 1999 EMMETT J 23 MAY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1398 OF 1999

BETWEEN: LEXMARK INTERNATIONAL, INC.

FIRST APPLICANT

LEXMARK INTERNATIONAL (AUSTRALIA) PTY LTD

(ACN 050 148 466)

SECOND APPLICANT

AND: BOOMERANG IMAGING SUPPLIES PTY LTD

(ACN 084 102 885)

FIRST RESPONDENT

DAVID SNG

SECOND RESPONDENT

PETER LEWIN CLINGIN

THIRD RESPONDENT

BOOMERANG TCR PTY LTD (ACN 006 158 274)

FOURTH RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 23 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. 1.The applicants serve on the respondents, no later than five days before the date on which it is proposed, particulars of any experiment, by way of testing cartridges, together with particulars of the facts that the applicants assert, will be established by those tests.