Surgibit IP Holdings Pty Limited v Ellis [2016] NSWSC 359

Supreme Court New South Wales

Medium Neutral Citation: Surgibit IP Holdings Pty Limited v Ellis [2016] NSWSC 359 Hearing dates: 30 March 2016 Decision date: 01 April 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Within one week of today, the parties are to provide me, if possible, with agreed calculations and agreed draft orders reflecting the precise sum in which default judgment should be entered against the defendant in accordance with the severance discussed in this judgment. (2) If such agreement is not forthcoming, counsel are to approach my Associate within one week of today to obtain a court date for a hearing of no more than 30 minutes' duration. (3) Leave is granted to the defendant to file an amended defence. (4) Within two weeks of today, the defendant must file and serve a further amended defence which pleads, in more detail, that the triple damages ordered on 20 June 2014 in the United States District Court for the North Eastern District of Illinois are penal in nature, and which pleads in detail that the attorney's fees ordered on the same date are also penal in nature. (5) Each party must pay its or his own costs of the proceedings before me on 30 March 2016. Catchwords: CIVIL – application to file amended defence – enforceability of foreign judgment – penal nature of aspects of foreign judgment – severance of portion of foreign judgment – entry of default judgment for part of sum claimed Legislation Cited: 35 United States Code § 285 Uniform Civil Procedure Rules 2005 (NSW), r 13.3 Cases Cited: Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) [1988] HCA 25; (1988) 165 CLR 30 Benefit Strategies Group Inc v Prider [2005] SASC 194; (2005) 91 SASR 544 Doe v Howard [2015] VSC 75 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Huntington v Attrill [1893] AC 150 Schnabel v Lui [2002] NSWSC 1184; (2002) 56 NSWLR 119 Surgibit IP Holdings Pty Limited v Orchid Orthopedic Solutions (District Court for the North Eastern District of Illinois (US), Civil Action No. 1:13-cv-8839, 20 June 2014) Surgibit IP Holdings Pty Limited v Orchid Orthopedic Solutions (District Court for the North Eastern District of Illinois (US), Civil Action No. 1:13-cv-8839, 5 February 2015) Surgibit IP Holdings Pty Limited v Orchid Orthopedic Solutions (District Court for the North Eastern District of Illinois (US), Civil Action No. 1:13-cv-8839, 14 October 2015) Category: Procedural and other rulings Parties: Surgibit IP Holdings Pty Limited (ACN 110 194 628) (First Plaintiff/ First Respondent) Orthopaedic Innovation Pty Ltd (ACN 101 791 084) (Second Plaintiff/Second Respondent) Liam Patrick Ellis (First Defendant/First Applicant) Cingular Pty Ltd (ACN 141 827 054) Representation: Counsel: J A Hogan-Doran (Plaintiffs/Respondents) P Cutler (Defendants/Applicants)