Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (No 2) [2014] NSWCA 62 Hearing dates: 20 August 2013 Decision date: 17 March 2014 Before: Meagher JA; Barrett JA; Ward JA Decision: Determination that it is in the interests of justice in the present case that the Court proceed to determine appellate proceeding Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - determination as to whether interests of justice require Court to determine the matter Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Patents Act 1990 (Cth) Cases Cited: AFT Mining Electrics Pty Ltd v Bramco Electronics Pty Ltd [2012] NSWSC 1126 Bramco Electronics Pty Ltd v AFT Mining Electrics Pty Ltd [2013] NSWCA 392 Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385 OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95 Category: Principal judgment Parties: Bramco Electronics Pty Ltd (Applicant) ATF Mining Electrics Pty Ltd (Respondent) Representation: Counsel: Ms J Baird SC (Applicant) C R C Newlinds SC with R D Glasson (Respondent) Solicitors: K&L Gates (Applicant) Moray & Agnew Lawyers (Respondent) File Number(s): CA 12/354542 Decision under appeal Citation: ATF Mining Electrics Pty Ltd v Bramco Electronics Pty Ltd [2012] NSWSC 1126 Date of Decision: 2012-09-18 00:00:00 Before: Sackar J File Number(s): SC 12/059118 Judgment 1THE COURT: As outlined in reasons published on 26 November 2013 (Bramco Electronics Pty Ltd v AFT Mining Electrics Pty Ltd [2013] NSWCA 392), the Court decided that an application for leave to appeal from the decision by Sackar J in AFT Mining Electrics Pty Ltd v Bramco Electronics Pty Ltd [2012] NSWSC 1126 was caught by the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and that, pursuant to s 7(7) of that Act, the Court was required to transfer the appellate proceeding to the Full Court of the Federal Court of Australia unless the interests of justice required the Court to proceed to determine the matter. 2Having received and considered submissions of the parties on that question, the Court has decided that the interests of justice require it to proceed to determine the matter. 3As explained in the reasons of 26 November 2013, the question whether this Court was required to transfer the appellate proceeding to the Full Court of the Federal Court, although raised by the Court itself at the start of the hearing, did not become the subject of considered attention by counsel for the parties until written submissions were lodged after the substantive hearing had concluded. The parties elected to argue their cases on the merits while the question of jurisdiction was left in abeyance. The Court allowed that course. 4The fact that a court has commenced to hear the matter is not, of itself, sufficient to cause the interests of justice to require retention: OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95 at [16]. What is of particular significance in this case is that this Court had completed a hearing on the merits before it became clear that the proceeding was a proceeding to which s 7(5) applied. That quality of the matter "appeared" to this Court only after it had received and considered the submissions lodged after completion of the hearing. The fact that a possible want of jurisdiction was raised with counsel at the start of the hearing was not sufficient to cause the relevant matter to "appear" to the Court at that stage to be of the relevant quality, particularly as counsel were not at that stage prepared to deal with the jurisdictional question. 5In Macchia v The Public Trustee [2008] WASCA 241; (2008) 251 ALR 385 Steytler P, with the concurrence of Le Miere AJA, said (at [25]), in circumstances where the issue of a possible transfer of the proceedings had been raised late and there had been full argument concerning the merits of the application, that the court should proceed to deal with the matter on the basis that: [t]o transfer the proceedings now (in circumstances in which the same arguments will again have to be put, leading to an outcome which seems to me to be inevitable) will add significantly to the costs of the parties, neither of whom seek a transfer to the Federal Court, for no benefit. Moreover, as I have earlier found, nothing that has been decided in the proceedings under appeal has determined any matter within the exclusive jurisdiction of the Federal Court. 6In the present case, as in Macchia, the proceedings under appeal decided nothing that was within the exclusive jurisdiction of the Federal Court. The issues to be determined on the appeal, as the submissions for both parties emphasise, are of a general contractual kind. They do not go to matters within the province of a specialist patents court. The matter of possible transfer was raised late and after there had been full argument on the merits of the appeal. Transfer of the proceedings would make it necessary for the same arguments to be put again, at significant additional cost to the parties, neither of which seeks transfer to the Full Federal Court. 7For reasons corresponding with those that the Court of Appeal of Western Australia found to represent a requirement in the interests of justice in Macchia, this Court is of the view that it was in the interests of justice in the present case that it proceed to determine the appellate proceeding which was fully argued and upon which judgment was reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2014