Masport Limited v Bartlem Pty Limited [2004] FCA 591

FEDERAL COURT OF AUSTRALIA

Masport Limited v Bartlem Pty Limited [2004] FCA 591 MASPORT LIMITED v BARTLEM PTY LIMITED AND GREENFIELD MOWERS PTY LIMITED N 500 of 2004 JACOBSON J 7 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 500 of 2004

BETWEEN: MASPORT LIMITED

APPLICANT

AND: BARTLEM PTY LIMITED

FIRST RESPONDENT

GREENFIELD MOWERS PTY LIMITED

SECOND RESPONDENT

JUDGE: JACOBSON

DATE OF ORDER: 7 MAY 2004

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the motion filed on 5 May 2004 be dismissed. 2. Orders that the respondents pay the applicant's costs of the motion. 3. Notes that respondents by their counsel give the usual undertakings as to damages. 4. Orders that the applicant, whether by itself, its servants, agents or otherwise howsoever be restrained until the determination of these proceedings or further order, from selling, hiring or otherwise disposing of the Masport Shredder (as defined in the Statement of Claim dated 8 April 2004) (the "Masport Shredder") in Australia, offering to sell, hire or otherwise dispose of the Masport Shredder in Australia or importing the Masport Shredder into Australia Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 500 of 2004

BETWEEN: MASPORT LIMITED

APPLICANT

AND: BARTLEM PTY LIMITED

FIRST RESPONDENT

GREENFIELD MOWERS PTY LIMITED

SECOND RESPONDENT

JUDGE: JACOBSON

DATE: 7 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is the first directions hearing of proceedings brought by the applicant under section 128 of the Patents Act 1990 (Cth) for unjustified threats of proceedings for patent infringement. The application was filed on 8 April 2004 and the directions hearing was originally to be held on 30 April 2004 but was adjourned to today. 2 The applicant says that the directions hearing was adjourned by the respondents unilaterally from 30 April 2004 to today to coincide with the hearing of an application by the respondents to join the applicant to proceedings for patent infringement which were commenced by the respondents in the Supreme Court of Queensland on 2 April 2004. The respondents deny that the adjournment was effected unilaterally. 3 It is unnecessary for me to decide whether the adjournment was effected in the manner contended by the applicant. 4 However, on 5 May 2004 the respondents filed a notice of motion returnable today seeking orders in the following terms: 1. This proceeding be temporarily stayed pending the determination of the First and Second Respondent's application for joinder of the Applicant as a party to action BS2293 of 2004 commenced by the First and Second Respondents in the Supreme Court in Queensland;