FEDERAL COURT OF AUSTRALIA Huawei Technologies Company Ltd v Al Amri [2011] FCA 503 Citation: Huawei Technologies Company Ltd v Al Amri [2011] FCA 503 Parties: HUAWEI TECHNOLOGIES COMPANY LTD v MOOSA EISA AL AMRI File number: VID 1064 of 2010 Judge: JESSUP J Date of judgment: 13 May 2011 Catchwords: PRACTICE AND PROCEDURE – Failure by respondent to file Defence ordered by court – Whether applicant entitled to summary judgment Legislation: Federal Court Rules Date of hearing: 13 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: Ms K Beattie Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: The respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1064 of 2010 BETWEEN: HUAWEI TECHNOLOGIES COMPANY LTD Applicant AND: MOOSA EISA AL AMRI Respondent JUDGE: JESSUP J DATE OF ORDER: 13 MAY 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Australian patent number 2004288303 be wholly revoked; 2. The respondent pay the applicant's costs of the proceeding on a party-party basis. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1064 of 2010 BETWEEN: HUAWEI TECHNOLOGIES COMPANY LTD Applicant AND: MOOSA EISA AL AMRI Respondent JUDGE: JESSUP J DATE: 13 MAY 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This proceeding was commenced by Application and Statement of Claim on 7 December 2010. The substance of the allegation made in the Application was that Australian patent number 2004288303 was, and had at all material times been, invalid. Particulars of Invalidity were served with the Statement of Claim, and set out clearly the bases upon which it was alleged that the patent was invalid. 2 Although the respondent resides overseas, he entered an appearance on 4 February 2011. It was a conditional appearance under O 9 r 6 of the Federal Court Rules, which provides: (1) A respondent may enter a conditional appearance. (2) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless the court otherwise orders or the respondent applies under and in accordance with rule 7 and the court makes an order under that rule. Rule 7 gives the court power to set aside an originating process, or the service of an originating process, and to make similar orders. The occasion for the court to exercise any such power did not arise in the present case, since no application was made under r 7. 3 Having been satisfied that the respondent's appearance had become unconditional pursuant to O 9 r 6(2), on 7 April 2011 I ordered that the respondent file and serve his Defence on or before 29 April 2011. The respondent did not comply with that order and has not, to this day, filed and served a Defence. The orders which I made on 7 April 2011 also provided for the proceeding to be listed for directions at 9:30 am on 13 May 2011. 4 In the absence of any Defence from the respondent, the applicant notified the respondent's solicitor on the record, and the respondent himself, that it proposed to move for final judgment in default of the Defence today. The notification to the solicitor prompted an email from him by which it was advised that his firm was no longer the address for service of the respondent. No new address for service was provided, and no change of practitioner was either filed or notified. In the circumstances, it was, in my view, open to the applicant to continue to deal with the solicitor on the record. However, the applicant took the cautious approach of having the respondent himself notified of the nature of the application which would be made today, and I am satisfied from the affidavit of Emma Kate Mitchell, sworn on 11 May 2011, that that was done. 5 The applicant moves for judgment under O 35A r 3(2). That provision empowers the court to give judgment against the respondent for the relief to which the applicant appears to be entitled on its Statement of Claim, and which the court is satisfied that it has power to grant in the circumstances now obtaining. The Statement of Claim makes allegations as to the invalidity of the patent in suit, and is supported by full particulars. Those allegations have not been responded to. The case seems to be foursquare within the circumstances with which O 35A r 3(2)(c) is concerned. 6 The order which the applicant seeks is that the patent in suit be wholly revoked, and that the respondent pay its costs. I am satisfied that the applicant is entitled to orders in those terms. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 27 May 2011