Scantech Ltd v Asbury [2009] FCA 1480

FEDERAL COURT OF AUSTRALIA

Scantech Ltd v Asbury [2009] FCA 1480

PRACTICE AND PROCEDURE – application to amend statement of claim – where claims for misuse of confidential information, misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and breach of contractual duties and duties under the Corporations Act 2001 (Cth) – where applicants originally pleaded that the respondents had sold and offered for sale a coal analyser that was developed by using the applicants' information, and had publicly promoted themselves as specialists in the supply, maintenance and support of the applicants' coal analyser – where applicants sought to amend statement of claim to include allegation that respondents had serviced, and manufactured, sold and installed a retrofit kit for, the applicants' coal analyser Held: application allowed – order under O 13, r 2(1) of Federal Court Rules – amendments closely linked to existing allegations – prejudice to respondents can be remedied by costs.

PRACTICE AND PROCEDURE – application for split trial so that liability determined before quantum – where claims for misuse of confidential information, misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and breach of contractual duties and duties under the Corporations Act 2001 (Cth) Held: application refused – application ought to have been made before discovery – delay already caused by allowing application to amend statement of claim – witnesses relevant to determination of liability may also be relevant to determination of quantum – no suggestion that case is likely to settle after separate determination of liability – possible to determine claim for lost royalty by reference to assumptions as to information that is confidential.

Corporations Act 2001 (Cth) s 183 Fair Trading Act 1987 (SA) s 56 Fair Trading Act 1989 (Qld) s 38 Trade Practices Act 1974 (Cth) s 52 Court Procedure Rules 2006 (ACT) r 502 Federal Court Rules O 13 r 2, O 21 r 2, O 29 r 2, O 35A r 3(1) AON Risk Services Australia Limited v Australian National University [2009] HCA 27 discussed Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591 referred to Liberty Financial Pty Ltd v Scott [2003] FCA 226 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 referred to SCANTECH LIMITED ACN 007 954 627 and SCANTECH SERVICES PTY LTD ACN 003 785 028 v JAMES HUBERT ASBURY, REAL TIME INSTRUMENTS PTY LTD ACN 093 565 701 and RTI PTY LTD ACN 108 037 252