FEDERAL COURT OF AUSTRALIA SNF (Australia) Pty Ltd v Ciba Speciality Chemicals Water Treatments Limited (No 3) [2011] FCA 902 Citation: SNF (Australia) Pty Ltd v Ciba Speciality Chemicals Water Treatments Limited (No 3) [2011] FCA 902 Parties: SNF (AUSTRALIA) PTY LTD (ACN 050 056 267) v CIBA SPECIALTY CHEMICALS WATER TREATMENTS LIMITED, CIBA (AUSTRALIA) PTY LTD (ACN 005 061 469) and THE COMMISSIONER OF PATENTS File number: VID 447 of 2008 Judge: KENNY J Date of judgment: 9 August 2011 Legislation: Federal Court Rules 2011 (Cth) Cases cited: DJL v Central Authority (2000) 201 CLR 226 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 44 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Australian Communications and Media Authority v Clarity1 Pty Ltd [2008] FCA 130 SNF (Australia) Pty Ltd v Ciba Speciality Chemicals Water Treatments Limited (No 2) [2011] FCA 656 Date of application: 9 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the Applicant/Cross-Respondent: No appearance Solicitor for the Applicant/Cross-Respondent: Middletons Counsel for the Respondents/Cross-Claimant: No appearance Solicitor for the Respondents/Cross-Claimants: Griffith Hack IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 447 of 2008 BETWEEN: SNF (AUSTRALIA) PTY LTD (ACN 050 056 267) Applicant/Cross-Respondent AND: CIBA SPECIALTY CHEMICALS WATER TREATMENTS LIMITED First Respondent/Cross-Claimant CIBA (AUSTRALIA) PTY LTD (ACN 005 061 469) Second Respondent THE COMMISSIONER OF PATENTS Third Respondent JUDGE: KENNY J DATE OF ORDER: 9 AUGUST 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The words "THE COURT ORDERS THAT" where first appearing in the declarations and orders as authenticated and entered on 9 June 2011 in this matter be corrected by deleting the word "ORDER" and including in lieu thereof the word "DECLARES". 2. The definition of "Patented Process" in the declarations and orders as made, authenticated and entered on 9 June 2011 in this matter be corrected by deleting the word "claim" in paragraphs B(g), C(j), D(m) and E(o) of the definition and including in lieu thereof the word "process". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 447 of 2008 BETWEEN: SNF (AUSTRALIA) PTY LTD (ACN 050 056 267) Applicant/Cross-Respondent AND: CIBA SPECIALTY CHEMICALS WATER TREATMENTS LIMITED First Respondent/Cross-Claimant CIBA (AUSTRALIA) PTY LTD (ACN 005 061 469) Second Respondent THE COMMISSIONER OF PATENTS Third Respondent JUDGE: KENNY J DATE: 9 AUGUST 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The Court delivered a judgment in this proceeding on 9 June 2011, in which it made declarations and orders. 2 The applicant/cross-respondent has notified the Court of what it considers to be "some minor errors arising from an accidental slip or omission". Specifically: 1. paragraphs 1, 2 and 3 are incorrectly recorded as orders. They should be recorded as declarations, and 2. the word "claim" in integers (g), (j), (m) and (o) of the definition of Patented Process should be changed to "process" as the subject of each reference is a process rather than a claim. 3 The applicant/cross-respondent advised the Court that the first and second respondents recently brought these matters to its attention. The proposed corrections are by agreement. 4 The applicant/cross-respondent has directed the Court's attention to Rule 39.05(h) of the Federal Court Rules 2011 (Cth), which provides that "[t]he Court may vary or set aside a judgment or order after it has been entered if: … there is an error arising in a judgment or order from an accidental slip or omission." Rule 39.05(e) and (g) further provide that the Court may also vary or set aside a judgment or order after it has been entered if "it does not reflect the intention of the Court" or "there is a clerical mistake in a judgment or order". These paragraphs of Rule 39.05 have their counterparts in O 35 r 7 of the Federal Court Rules 1979 (Cth). Further, the authorities support the proposition that the Court has an inherent power to amend judgments that do not correctly state what was decided and intended: see, for example, DJL v Central Authority (2000) 201 CLR 226 at 263 [93] (Kirby J, with whom Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ agreed) at 244 [34]; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 44 at [2] (Keane CJ, Emmett and Perram JJ); Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; and Australian Communications and Media Authority v Clarity1 Pty Ltd [2008] FCA 130 and the authorities there mentioned. 5 In the present case, paragraphs 1, 2, and 3 of the declarations and orders as pronounced in court on 9 June 2011 (and as recorded in writing accompanying the written reasons for judgment: see SNF (Australia) Pty Ltd v Ciba Speciality Chemicals Water Treatments Limited (No 2) [2011] FCA 656) did not contain the errors that the parties have identified. The errors that the parties have identified in these paragraphs appeared in the electronic "Federal Law Search", and have occurred in the clerical process of data entry and largely as a result of the electronic template that must be used. Under the Court's current protocols and in this Chambers, this data entry process also gave rise to the same mistake in the "orders" as authenticated or entered. The errors were clearly inadvertent and failed to reflect the Court's intentions. 6 There would also appear to be an accidental error in the definition of "Patented Process" in the declarations and orders made on 9 June 2011. The word "claim" in paragraphs B(g), C(j), D(m) and E(o) of the definition of "Patented Process" should clearly be "process". The error was an oversight on the Court's part. 7 In these circumstances, it is appropriate to exercise power under Rule 39.05, which allows a court to rectify orders in the circumstances mentioned in paragraphs (e), (g) and (h) (referred to above). 8 Accordingly, I would order: 1. The words "THE COURT ORDERS THAT" where first appearing in the declarations and orders as authenticated and entered on 9 June 2011 in this matter be corrected by deleting the word "ORDER" and including in lieu thereof the word "DECLARES". 2. The definition of "Patented Process" in the declarations and orders as made, authenticated and entered on 9 June 2011 in this matter be corrected by deleting the word "claim" in paragraphs B(g), C(j), D(m) and E(o) of the definition and including in lieu thereof the word "process". I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 9 August 2011