McHutchison v Western Research and Development Ltd [2004] FCA 1522

FEDERAL COURT OF AUSTRALIA

McHutchison v Western Research and Development Ltd [2004] FCA 1522 COSTS – whether indemnity costs appropriate PROCEDURE – whether application to strike out should be allowed EVIDENCE – estoppel – whether argument of agency precluded by reasons previously delivered

Trade Practices Act 1974 (Cth) s 51AA Patents Act 1990 (Cth) s 15 Commercial Arbitration Act 1985 (WA) s 4(1), 53(1)

Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 cited Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited Fountain Selected Meats (Sales) Pty Ltd v National Produce Merchants Ltd (1988) 81 ALR 397 cited McHutchison v Western Research and Development Ltd [2004] FCA 419 considered ROY NEIL McHUTCHISON v WESTERN RESEARCH AND DEVELOPMENT LTD W208 of 2003 RD NICHOLSON J 23 NOVEMBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W208 OF 2003

BETWEEN: ROY NEIL McHUTCHISON

APPLICANT

AND: WESTERN RESEARCH AND DEVELOPMENT LTD

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 23 NOVEMBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant pay the costs of the respondent and the costs of Eastland Technology Australia Ltd ('ETA') of and occasioned by the motion to restrain solicitor dated 13 February 2004, including the costs reserved on 29 March 2004 and the costs reserved on 30 July 2004, forthwith and in the case of costs incurred by the respondent and ETA subsequent to the adjournment on 29 March 2004 of the respondents motion to restrain the applicant's solicitor up to and including the hearing on 30 July 2004 on an indemnity basis. 2. It be declared that the reasons for judgment delivered on 8 April 2004 do not give rise to an issue estoppel in relation to the question of whether ETA entered into the consultancy agreement dated 7 September 2001 as agent for its subsidiaries including the respondent. 3. The statement of claim dated 10 November 2003 and paragraphs 7, 17(b), 22A and 34 – 40 of the proposed amended statement of claim be struck out. 4. The applicant have leave to file and serve an amended statement of claim and any amended application within 28 days, failing which the action be dismissed. 5. C M McHutchison Pty Ltd (ACN 082 655 196) be joined as an applicant. 6. The respondent's motion dated 1 July 2004 be otherwise dismissed. 7. The applicant pay the respondent's costs of the motion dated 1 July 2004, including the costs of the special appointment on 10 September 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.