Civil litigation is a costly and technical process which requires careful compliance with the legislative and rules of the respective Court. In contrast it also is akin to a game of chess as each party to the proceedings does now know the others strategy. In Queensland, the predominant legislation which governs how litigation is to be conducted is contained in the Uniform Civil Procedure Rules 1999(Qld)(UCPR). There are of course various practice notes and rules prescribed by the respective Court and case law which needs to be complied with depending on the circumstances and the Court. [Read more…]
A bet or a game? The Lottoland case
August 22, 2019 by
On 16 August 2019, the Supreme Court of New South Wales (Supreme Court) ruled in favour of the plaintiff, Lottoland Australia Pty Ltd ACN 602 590 429 (Lottoland), in its action against the Australian Communications and Media Authority (ACMA) for their investigative findings against them stating their online products were in contravention of the relevant legislation: Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041. [Read more…]
Changes to ACL – suppliers of services to use compulsory wording
August 14, 2019 by
On 9 June 2019, amendments to Schedule 2 of the Competition and Consumer Amendment (Australian Consumer Law Review) Regulations 2018 (Cth) (Amendments) came into effect. The Amendments require suppliers of goods and services to use a mandatory wording if they provide a “warranty against defects”. Mandatory wording of such warranties were previously required only for the supply of goods. However, these changes extend the prescribed warranties to situations where there is a supply of services or a supply of both goods and services. [Read more…]
Implications of performing unlicensed building work
June 19, 2019 by
Unlawful building work performed by an unlicensed person has significant implications for the person who performs the unlicensed building work. In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act). Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00. Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation. [Read more…]
Confusing marks – Sensis v Senses
June 18, 2019 by
In the recent case of Sensis Pty Ltd v Senses Direct Mail and Fulfillment Pty Ltd [2019] FCA 719 (24 May 2019) (Sensis v Senses) the moral of the story might be that if your brand name is so similar to another company that your customers could confuse or are confusing their name with yours… you might be in trouble. This was the case in Sensis v Senses where Senses Direct Mail and Fulfillment Pty Ltd (Respondent) was held to have infringed the registered marks of Sensis Pty Ltd (Applicant) owner of well-known directory brands, including the Yellow Pages and White Pages. [Read more…]
Unfair preferences and the set-off defence
June 18, 2019 by
Under section 588FA of the Corporations Act 2001 (Cth) (Act) an unfair preference is defined as a transaction, such as payment of an outstanding debt, between a company and an unsecured creditor which results in that unsecured creditor receiving more than it would have received if it had to prove in the winding up of the debtor company. It is unfair because the payment results in the net value of the assets of the debtor company being reduced, to the detriment of the body of unsecured creditors as a whole. One of the rarer defences is the Set-Off to an unfair preference claim. [Read more…]
Security for legal costs in cross-claims for patent invalidity
March 25, 2019 by
The usual position in relation to security for costs in disputes before the Federal Court of Australia is that a respondent (including a cross-respondent) may make an application for security for its legal costs to insulate itself if it is successful in defending the allegations made by an applicant against it. What is the situation regarding security for costs where a respondent ‘cross-claims’ for revocation of a patent because it alleges that it is invalid and should never have been granted in the first place? [Read more…]
Is your patent being infringed?
February 9, 2019 by
A patent grants the owner (Patentee) exclusive rights to exploit the patented invention (as defined in the Patents Act 1990 (Cth) (Patents Act)) within Australia. If another party uses the patent without the authorisation of the Patentee, they will infringe. In this article we consider the high level issues to consider when attempting to determine whether a patent has been infringed. [Read more…]
Patent revocation for lack of novelty
January 27, 2019 by
One of the often cited requirements for a patent to be granted, is that the invention as claimed must be ‘novel’ in light of the information of the day (referred to as the prior art and the common general knowledge) (section 18(1)(b)(i) of the Patents Act 1990 (Cth)(Patents Act)). Put simply, if its been done before, chances are that it may lack novelty. Therefore, if a patent, when viewed against the prior art and common general knowledge does not disclose an invention that is novel, it cannot be said to contain the required feature of novelty. [Read more…]
Introduction to patent revocation
January 23, 2019 by
In legal proceedings involving the alleged infringement of a patent, it’s common for the respondent to go on the offensive and attempt to convince the Court that the said patent is invalid. If proven, it necessarily follows there can be no infringement. There is no one section of the Patents Act 1990 (Cth) (Patents Act) that specifically deals with invalidity. In effect invalidity is established by proving that the requirements of validity set out in section 18 of the Patents Act are not made out on the patent in question, or that there are other grounds (such as sections 40 and 138) which the patent does not comply with. [Read more…]
B.Bus.,MBA.,LL.B.
