Federal Court of Australia
Federal Court of Australia
Mickala Mining Maintenance Pty Ltd v Southern Cross Mining Services Pty Ltd [2020] FCA 1635 Appeal from: Application for leave to appeal: Southern Cross Mining Services Pty Ltd v Mickala Mining Maintenance Pty Ltd [2020] FCA 1064
File number: QUD 251 of 2020
Judgment of: BESANKO J
Date of judgment: 12 November 2020
Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from the primary judge's decision to refuse an application to amend the statement of cross-claim — whether decision of the primary judge attended with sufficient doubt to warrant it being reconsidered by a Full Court — question of whether the proposition that deliberate concealment is not an essential element of a plea of secret use is sufficiently arguable for the grant of leave — question of whether an advertisement of the patented product by the patentee before the priority date satisfied the criteria for a secret use of the obtaining of a commercial benefit is sufficiently arguable for the grant of leave — application dismissed
Legislation: Patents Act 1990 (Cth) ss 18, 138
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Azuko Pty Ltd v Old Digger Pty Ltd (formerly SDS Digger Tools Pty Ltd) [2001] FCA 1079; (2001) 52 IPR 75 Bristol-Myers Co v Beecham Group Ltd [1974] AC 646 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Melbourne v Terry Fluid Controls Pty Ltd (1993) 26 IPR 292 Morgan v Seaward (1837) 2 M & W 544; 150 ER 874 Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067
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