FEDERAL COURT OF AUSTRALIA State of Victoria v Pacific Technologies (Australia) Pty Ltd ACN 064 199 439 [2009] FCA 458 ` THE STATE OF VICTORIA v PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LTD ACN 064 199 439 NSD 1429 of 2008 EMMETT J 30 MARCH 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1429 of 2008 BETWEEN: THE STATE OF VICTORIA Applicant AND: PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LTD ACN 064 199 439 Respondent JUDGE: EMMETT J DATE OF ORDER: 30 MARCH 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be withdrawn for the respondent to be represented further in this proceeding by Mr William Allardyce. 2. The respondent, through any solicitor acting on its behalf, file and serve any written submissions in response to the applicant's outline of submissions dated 15 October 2008 by 4 pm on Friday, 1 May 2009. 3. In the event that the respondent complies with Order 2, the applicant file and serve any written submissions in reply by 4 pm on Friday, 15 May 2009. 4. The respondents pay the applicant's costs of today. 5. The matter be listed for directions on 21 May 2009. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1429 of 2008 BETWEEN: THE STATE OF VICTORIA Applicant AND: PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LTD ACN 064 199 439 Respondent JUDGE: EMMETT J DATE: 30 MARCH 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This proceeding has had an unfortunate history. The proceeding arose out of a reference in the Copyright Tribunal of Australia, in which the respondent sought orders in relation to the alleged use by the applicant of an alleged literary work in respect of which the respondent claimed copyright. The applicant, the State of Victoria, says that there is no copyright in the alleged literary work, having regard to the nature and the brevity of it. It was therefore suggested, when the matter was before the Copyright Tribunal, that the State of Victoria commence a proceeding in the Court seeking a determination as to whether or not copyright subsists in the alleged literary work. This proceeding resulted from that suggestion. 2 The matter has been listed for directions on a number of occasions, and has been listed for hearing on several occasions. The respondent is a limited liability company, the principal of which is Mr William Allardyce. Following the withdrawal of the solicitors who were previously acting for the respondent, leave was given for the respondent to be represented by Mr Allardyce on a number of occasions. Mr Allardyce has a medical condition which appears to interfere with his capacity to attend Court and to appear. On the last occasion, when the matter was fixed for hearing, Mr Allardyce became indisposed in the course of the hearing and the hearing was vacated. 3 The matter was stood over for directions and, after a further adjournment, was listed today. There was no appearance for the respondent. However, at some stage on Sunday, 29 March 2009, a facsimile communication was sent to the Court from the respondent, indicating that Mr Allardyce continued to be indisposed and that, in fact, he has an appointment with a psychiatrist in Geelong this morning, making it impossible for him to attend Court either in Sydney, or by video link in Melbourne. Mr Allardyce asserted in his communication that it was known that he had such an arrangement. It may be that he had communicated that fact to someone. It was certainly not in my mind or the mind of my associate when the matter was fixed for directions this morning. 4 Mr Allardyce has had considerable time within which to arrange alternative representation for the respondent and, on one view, the State of Victoria has been generous in its attitude towards the inability of the respondent to ready itself for hearing. Mr Allardyce, on the other hand, makes allegations against the way in which the State has been conducting the proceeding. I will not express any view about that in the absence of Mr Allardyce. However, when the matter was called on this morning, the State proposed a further regime to endeavour to have the matter heard in a fashion that would be fair to the respondent. In the circumstances, the State asks that leave be withdrawn for the respondent to be represented further by Mr Allardyce. Having regard to the difficulties that Mr Allardyce has had in dealing with the matter, that seems to me to be desirable. It would, of course, be open to Mr Allardyce to make a further application supported by appropriate material, if the occasion arises in the future. 5 The State proposes that the respondent be directed to file and serve any written submissions that it wishes to make in response to the State's outline that was filed on 15 October 2008. That step should be taken by 1 May 2009. I will list the matter for directions again on 21 May 2009. At that stage it should be possible, once again, to fix a date for the hearing of the application. At this stage, the State asks only for the costs of today. On one view, it would be entitled to the costs of the hearing on the last occasion that were thrown away. However, at this stage, the State has not asked for that order. In the circumstances, I consider that it is appropriate to order the respondent to pay the applicant's costs of today. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 6 May 2009 Counsel for the Applicant: Mr AJ Maryniak Solicitor for the Applicant: Minter Ellison Lawyers Date of Hearing: 30 March 2009 Date of Judgment: 30 March 2009