A'Van Campers Pty Ltd v Camoflag Pty Ltd [2003] FCA 353

FEDERAL COURT OF AUSTRALIA

A'Van Campers Pty Ltd v Camoflag Pty Ltd [2003] FCA 353 PATENT - registered design - infringement proceedings –cross claims for revocation – amendment of particulars of grounds of invalidity – whether an Earth Closet or a See v Scott-Paine order is appropriate – consideration of circumstances in which such orders are not appropriate Wimmera Industrial Minerals Pty Ltd v RGC Minerals Sands Ltd (1998) AIPC 91-406 – referred to Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd (1999) 46 IPR 173 – referred to Baird v Moule's Patent Earth Closet Co Ltd - cited Edison Telephone Co v India Rubber Co (1881) 17 Ch D 137 – cited See v Scott-Paine (1933) 50 RPC 56 - cited GEC Alstom Limited's Patent [1996] FSR 415 - considered A'VAN CAMPERS PTY LTD v CAMOFLAG PTY LTD V1190 OF 2001 MERKEL J MELBOURNE 23 APRIL 2003

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1190 OF 2001

BETWEEN: A'VAN CAMPERS PTY LTD

APPLICANT

AND: CAMOFLAG PTY LTD

RESPONDENT

AND BETWEEN: CAMOFLAG PTY LTD

CROSS-CLAIMANT

AND: A'VAN CAMPERS PTY LTD

CROSS-RESPONDENT

JUDGE: MERKEL J

DATE OF ORDER: 23 APRIL 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondent have leave to amend its defence, cross-claim and Particulars of Invalidity in the manner set out in Exhibit "JST 1" to the affidavit of James Stefan Tobin sworn on 19 December 2002. 2. The respondent pay the applicant's costs thrown away by reason of the amendments. 3. The applicant pay 75 per cent of the respondent's costs of and incidental to the respondent's motion filed on 20 December 2002. 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 V1190 OF 2003