Innotech Pty. Ltd. v. Phoenix Rotary Spike Harrows Ltd.
A-253-97
Strayer J.A.
18/6/97
3 pp.
Appeal from dismissal of motion to strike out counterclaim-Statement of claim alleging patent infringement-In statement of defence Phoenix denying liability as acted under licence-Also filing counterclaim seeking declaration as to validity of licence, injunctions for enforcement, damages for alleged breach of licence by appellant-Motions Judge holding as counterclaim merely particularizing basis of grievance claimed by defendants, inappropriate to sever pleadings-Appeal allowed-Although same licence involved in statement of defence and counterclaim, used as shield against claim of infringement in statement of defence and as sword, basis for obtaining remedies against appellant for its enforcement in counterclaim-Counterclaim would stand alone as action for breach of contract-As such not within Court's jurisdiction-Main action can be decided on basis of statement of claim and statement of defence, but counterclaim must be viewed as distinct action primarily involving alleged breach of contract.