FEDERAL COURT OF AUSTRALIA Raytheon Corporation v Lockheed Martin Corporation [2012] FCA 878 Citation: Raytheon Corporation v Lockheed Martin Corporation [2012] FCA 878 Parties: RAYTHEON CORPORATION v LOCKHEED MARTIN CORPORATION File number: WAD 161 of 2012 Judge: GILMOUR J Date of judgment: 15 August 2012 Legislation: National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) s 6A Cases cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Date of hearing: 15 August 2012 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr D Stewart Solicitor for the Applicant: Wrays Counsel for the Respondent: Ms S Marks SC with Ms F Marks Solicitor for the Respondent: Logie-Smith Lanyon Lawyers IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 161 of 2012 BETWEEN: RAYTHEON CORPORATION Applicant AND: LOCKHEED MARTIN CORPORATION Respondent JUDGE: GILMOUR J DATE OF ORDER: 15 AUGUST 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant's interlocutory application for an adjournment be dismissed. 2. The applicant pay the respondent's costs of the interlocutory application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 161 of 2012 BETWEEN: RAYTHEON CORPORATION Applicant AND: LOCKHEED MARTIN CORPORATION Respondent JUDGE: GILMOUR J DATE: 15 AUGUST 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 This matter came on for directions yesterday. The applicant sought an adjournment for four weeks to enable the Attorney General of the Commonwealth to make a determination as to whether to issue a notice under s 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) and, in turn, to enable the applicant on review to put the material, the subject of that notice, into evidence for the purposes of the substantive judicial review hearing. The application for an adjournment was opposed. I adjourned the directions hearing until this morning to hear argument on the adjournment application. 2 The adjournment application is supported by an affidavit of Catherine Melanie Anita Toal, a lawyer with the solicitors acting on behalf of the applicant, and which was sworn on 14 August 2012. 3 It is unnecessary to set out in any detail the facts concerning the underlying application which is before the Registrar of Trade Marks and presently listed for hearing in Perth at the end of this month. Suffice to say that the present applicant applied before the Registrar for an extension of time to enable it, at the substantive hearing, to put on sales evidence of the goods sold to the Australian Defence Force (ADF) under its trade mark between 1980 and 2003. It seems that certain clearances, which were required from the Royal Australian Air Force (RAAF) before such evidence could be tendered, had been sought by the applicant but not then provided by the RAAF. That evidence, for that reason, because of its potential impact on Australian national security was not, self-evidently, able to be adduced at the time of the interlocutory application for an extension of time. If it had been otherwise, there would have been no need to have sought an extension of time. Indeed, the applicant did not invite the Registrar to look at the documents under relevant procedures it now contends, without specificity, could have been availed of by the Registrar. The extension of time application was refused with reasons delivered on 28 June 2012. 4 The amended application for review seeks a review of this decision. The applicant asserts that it is aggrieved by reason of it having been denied natural justice and because it contends that the delegate of the Trade Marks Registrar took into account irrelevant considerations and failed to take into account relevant considerations. 5 The grounds of the application are: 1. The Applicant was denied natural justice (section 5(1)(a) and section 5(h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJRA)) in that the Delegate, being a person appointed to conduct the Extension of Time Application hearing, who has, or could have had, appropriate security clearance, could have assessed the probity of the Further Evidence sought to be adduced by Applicant. 2. The Applicant was denied natural justice (section 5(1)(a) and section 5(h) of the ADJRA) in that the Delegate could have made an initial assessment of the probity of the Further Evidence sought to be adduced based on the description of the evidence provided by the Applicant. 3. The Delegate took irrelevant considerations into account in that the Opponent stated that it would refuse to take service of classified materials, notwithstanding the Applicant's position that the Further Evidence would only be filed and served once the Applicant had received approval from the Royal Australian Air Force to use the Further Evidence in the Opposition Proceedings. The decision was so unreasonable that no reasonable person could have exercised the power in this way (section 5(g) of the ADJRA). 4. The Delegate took irrelevant considerations into account (section 5(2)(b) of the ADJRA) by applying weight to the inconvenience the parties would be put to if required to: a. submit to a security vetting process; b. adopt means of accepting and storing security information; and c. find a suitable venue in which to hear the matter. 5. The Delegate took irrelevant considerations into account by applying principles that were inappropriate for determining whether or not to grant an extension of time (section 5(f) and section 5(2)(b) of the ADJRA). 6. The Delegate failed to take relevant considerations into account in that IP Australia has protocols and mechanisms in place to receive classified materials in relation to its administration of section 173 of the Patents Act 1995 and section 108 of the Designs Act 2003, which could have been applied to its administration of the Trade Marks Act 1995 (section 5(2)(b) of the ADJRA). 6 It is my view that none of the grounds require, as further evidence, the admission of the documents the subject of the request to the Commonwealth Attorney General. The decision under challenge is, as I have mentioned, the refusal to extend time to enable the applicant to be in a position to tender as evidence in the substantive trade mark application hearing the very same documents. The question of whether the Registrar made any relevant error of law requires to be considered by the Court having regard to the materials that were before him. The documents in question were not before him. As to the general position in that regard: see for example, Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442]. Even if the error alleged is that the Registrar ought to have taken steps to have those documents before him for his consideration upon the extension of time application, such an error, in order to be made good, does not, in my opinion, require that the documents be before this Court on the substantive judicial review hearing. 7 Accordingly, for these reasons, I would refuse the adjournment with costs. There will be orders that the applicant's interlocutory application for an adjournment be dismissed and that the applicant pay the respondent's costs of the interlocutory application, to be taxed if not agreed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 17 August 2012