Case: Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545
Outcome: considered
In Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545 (" Aristocrat ") Allsop J at [4]-[9] observed: There has been a practice in this Court for as long as I can recall in relation to intellectual property matters, except in urgent cases where immediate orders are required, for the Court to direct the parties to bring in short minutes of order in relation to the reasons for decision. By and large, this is a salutary and wise course, given the complexities of many intellectual property cases, including patent cases, and the possibility of complex multi-claimed specifications and patents not being adequately, or fully, dealt with by substantive reasons. With skilled counsel, the quickest and most efficient way of dealing with orders is to provide reasons with or without draft orders and for counsel to attend to the appropriate form of orders to be brought to Court. The danger that lurks in that salutary practice is that, without orders being made, it might be seen that the case has not finished and if parties win or lose, for reasons that may or may not be such as to be helped by further evidence, there may be a temptation to add to evidence and/or submissions to remedy what are perceived as errors or lack of attention in the reasons. The balance between obtaining the correct orders with the assistance of counsel and dealing with matters truly overlooked and simply having another go may at times be difficult to assess. However, I think it is necessary to be vigilant to ensure that the hearing of the matter and the provision of reasons with a call for the bringing in of short minutes is not viewed as the first stage of the debate, to be continued by ever reducing iterations of analysis and evidence. This is especially so in relation to appeals from the Office and the Commissioner which, for the reasons I expressed in paragraphs [5] and following of my reasons of 7 February 2007, should be understood as not ultimate final hearings as to the validity of the patent. These hearings should be, as far as the complexity of a matter allows, dealt with as expeditiously as possible. I have had regard to the careful submissions of the applicant filed on 10 May 2007 and, in particular, [15] through [44]. The principles governing re-opening are set out in the cases there identified and I have had particular regard to what was said by Hill J in Hyster Australia Proprietary Limited v Anti-Dumping Authority (1993) 41 FCR 259 ; Wentworth v Rogers [2002] NSWSC 921 ; Twenty-First Australia Inc v Shade NSWSC (unreported, New South Wales Supreme Court, Equity Division, Young J, 31 July 1998), AB v Federal Commissioner of Taxation (1998) 157 ALR 510 , and Smith v New South Wales Bar Association (1992) 176 CLR 256. The questioning of re-opening is, as Hill J said in Hyster 41 FCR 259 , a question of a general judicial discretion which has bearing down on it various considerations: s 22 of the Federal Court of Australia Act 1976 (Cth), the interests of justice in all the circumstances of the case between the parties, the importance of finality of litigation, the importance of the public register kept by the Commissioner for Patents being correct and public confidence in the prompt despatch of the business of this Court. 7 Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said: The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 , 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 , 309. It would also be appropriate to reopen if it were clear that the court had proceeded "on a misapprehension as to the facts or the law", especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14 ; (1997) 190 CLR 207.