Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd [2004] FCA 1115
PRACTICE AND PROCEDURE –Application for leave to file and serve late affidavit evidence – Whether prejudice to applicants caused by delay to proceeding if evidence admitted outweighed by public interest in having only valid designs on the register – Whether evidence relates to prior use.
Evidence Act 1995 (Cth) s78 Designs Act 1906 (Cth) s 17 Cooke v Commissioner of Taxation; Jamieson v Commissioner of Taxation [2001] FCA 1654 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 State of Queensland v J L Holdings Pty Ltd (1957) 189 CLR 147 DIAS ALUMINIUM PRODUCTS PTY LTD v ULLRICH ALUMINIUM PTY LTD V123 of 2002 CRENNAN J 27 AUGUST 2004 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V123 OF 2002
BETWEEN: Dias Aluminium Products Pty Ltd
APPLICANT
AND: Ullrich Aluminium Pty Ltd
RESPONDENT
JUDGE: Crennan
DATE OF ORDER: 27 August 2004
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. Respondent be granted leave to lead evidence in chief to clarify paragraph 16 of the affidavit of Kevin David Goldman and paragraph 4 of the affidavit of Anthony John Oakley.
2. Respondent to file and serve any amended defence and cross‑claim and further and better particulars of invalidity (which will include a reference to the subsections of s 17 of the Designs Act 1906 (Cth)to which such particulars are relevant) on or before 4:00 pm on 31 August 2004.
3. Respondent be granted leave to read paragraphs 1 to 15, first and last sentence of paragraph 16, paragraphs 17 to 21, and the first and last line of paragraph 22 of the affidavit of Kevin David Goldman.
4. Respondent is granted leave to read the affidavit of Anthony John Oakley.
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