Clone Pty Ltd v Players Pty Ltd

(a) an Originating Application dated 5 January 2026;

(b) a Concise Statement dated 29 December 2025; and

(c) supporting affidavits made by Mr Davies and identified as Affidavits #1, #2, #3, #6 and #7 and their exhibits.

1. On this application, Mr Davies does not have legal representation.
2. The originating application was supported by written submissions dated 8 January 2026 and an affidavit made by Mr Davies on 27 January 2026.
3. By affidavit made on 2 April 2026, Mr Davies annexed a revised form of Originating Application and Concise Statement for which he seeks leave to file.
4. On 2 April 2026, Mr Davies also filed further written submissions in support of his application.
5. In these reasons, the revised form of Originating Application and Concise Statement and Mr Davies' supporting affidavits identified as Affidavits #1, #2, #3, #6 and #7 and their exhibits will be referred to collectively as the Proposed Initiating Documents.
6. By the Proposed Initiating Documents, Mr Davies seeks orders under r 39.05(b) of the FC Rules, s 23 of the Federal Court of Australia Act 1976 (Cth) and the Court's implied powers setting aside the judgment of this Court in Davies v Lazer Safe Pty Ltd [2018] FCA 702 (Lazer Safe 2018) on the ground that it was (in part) obtained by fraud, and consequential orders.
7. By way of background, Mr Davies was an applicant together with Triclops Technologies Pty Ltd (Triclops) in a patent infringement proceeding brought against Lazer Safe Pty Ltd (Lazer Safe). The proceeding was commenced in 2015 and concerned a patent that related to a safety system. Mr Davies is the owner of the patent and Triclops was the exclusive licensee. After a final hearing, the claims of patent infringement by Lazer Safe were dismissed in May 2018 with reasons published in Lazer Safe 2018. Judgment was entered accordingly. An appeal by Mr Davies and Triclops was dismissed in 2019 with reasons published in Davies v Lazer Safe Pty Ltd [2019] FCAFC 65 (Lazer Safe 2019). In both the first instance proceedings and the appeal, all parties were legally represented.
8. Mr Davies requires leave to file the Proposed Initiating Documents because, on 5 August 2025, Bank-Smith J gave a direction pursuant to r 2.27(f) of the FC Rules that Mr Davies not be permitted to file an application of that kind without leave of the Court. The direction was given by reason of Mr Davies' repeated attempts to file an application of that kind. Applications were lodged for filing on or about 15 October 2024, 26 November 2024, 9 December 2024, 22 April 2025, 12 May 2025, 9 June 2025, 23 June 2025 and 3 July 2025. The applications were refused to be accepted for filing for reasons that included: the documents constituted an abuse of process, were frivolous or vexatious; the documents did not tend to prove the active positive fraud or intentional contrivance referred to in the authorities; the documents amounted to little more than speculation and tenuous inference; the documents did not contain relevant new evidence that was not before the trial judge; the documents do not carry the necessary cogency for the reopening of the case; and the documents would tend to vex the respondent and proposed respondent so as to constitute an abuse of process. In giving the direction, Banks-Smith J noted that significant resources of the Court had been addressed to considering those applications and providing reasons for the refusal. Her Honour concluded:

It is not appropriate that Mr Davies simply continue to lodge applications and supporting documents that do not comply with the rules and do not disclose a reasonable basis for the serious allegations he seeks to make, many years after judgement was entered.

In these circumstances, the appropriate course at this stage is not to bar Mr Davies from attempting to file applications, but to require him to obtain leave from a judge in order to do so. This course will allow Mr Davies to make submissions as to why he should be permitted to file any further applications and will provide an opportunity for the proposed application to be considered by a judge.

1. Undeterred by the direction made by Banks-Smith J, on 16 October 2025 Mr Davies applied for leave to bring materially the same application, seeking to set aside the judgment of the Court in Lazer Safe 2018 on the ground that it was (in part) obtained by fraud. That application was considered and dismissed by Colvin J on 9 December 2026, with reasons published in Davies, in the matter of an application by Davies [2025] FCA 1552 (Davies 2025). His Honour's reasons included the following observations and findings:

(a) The Court regards finality as fundamental to any civilised and just judicial system. The reasons for this were explained in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 273 (Deane and Gaudron JJ). There is injustice if a party is required to litigate afresh matters which have already been determined by the courts. Decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct. Consequently, the circumstances in which the Court will reopen a case after a final hearing and appeal are very confined: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]- [36].

(b) Mr Davies explained the scope of his proposed application as follows:

The applicant does not seek, at this stage, to institute a fresh cause of action to impeach the judgment. Rather, he seeks to invoke the Court's powers ... to re-open limited aspects of the existing proceeding where there is a realistically arguable case that key findings (particularly at [265]-[279]) were procured on a materially incomplete and misleading product description record, as later contradicted by manuals KD101-KD107. Those impugned paragraphs underpinned the ultimate non-infringement result. The proposed re-opening is confined, targeted and document-led.

(c) Mr Davies seeks to impeach the findings made in the previous proceedings by seeking to adduce further evidence. This is not to assert any recognisable form of fraud of a kind that would justify reopening the proceedings: as to which, see Clone Pty Ltd v Players Pty Ltd (In Liq) [2018] HCA 12; (2018) 264 CLR 165; and the summary by Perry J in Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617 at [57]- [58], [62]-[63]. Rather it is an attempt to litigate afresh that which has been decided. It is an attempt to advance additional evidence to challenge findings that were made. To set aside a final judgment that has been upheld on appeal there must be some form of dishonesty that has affected the integrity of the court process. Reference to evidence that was not before the Court, or other points that may have been made, are not a basis for alleging fraud.

(d) Further, when it comes to fraud, the Court is especially vigilant to ensure that there is a proper basis for such a serious allegation. It requires details to support the claim of fraud. Those details must expose a basis upon which a conclusion of fraud could be reached. There must also be a reasonable basis to support the details being advanced. Where lawyers are involved, the Court relies upon the discharge by them of the professional obligations when it comes to allegations of fraud. Where a litigant in person seeks to raise a claim of that kind "the Court must be satisfied that there is some evidentiary basis for the claims made": Frigger v Trenfield (Application to Adjourn Final Hearing) [2025] FCA 71 at [29].

1. Now, undeterred by the decision made on 9 December 2025 by Colvin J, Mr Davies has applied yet again for leave to bring materially the same application, seeking to set aside the judgment of the Court in Lazer Safe 2018 on the ground that it was (in part) obtained by fraud.
2. The proposed Originating Application states that the proposed claim is limited to challenging the Court's finding, in Lazer Safe 2018, that integer 1.6 of the patent in suit was not infringed. It is alleged that that finding was "materially corrupted by fraud (including dishonest conduct such as deliberate concealment or knowingly false verified statements) and associated serious process-integrity failures in the preparation, verification and maintenance of product descriptions, interrogatory answers and expert evidence". By the proposed Originating Application, Mr Davies seeks a declaration that the factual findings at [265]-[279], and the "evaluative preferences expressed ... in favour of Mr Appleyard on claim construction and infringement" at [31] and [223] of Lazer Safe 2018, were made on a materially false, misleading or incomplete factual record by reason of:

(a) fraud (including dishonest conduct such as deliberate concealment or knowingly false verified statements); and

(b) associated serious "process-integrity failures" in the preparation, verification and maintenance of product descriptions, interrogatory answers and expert evidence.

1. The proposed Concise Statement contains allegations to the same effect. It alleges that:

(a) the factual record (in the Lazer Safe proceeding) was materially curated and corrupted by dishonest conduct in the preparation, verification and maintenance of court-ordered product descriptions (PD1-PD3), interrogatory answers, and technical evidence prepared and verified by or on behalf of Lazer Safe;

(b) later-retrieved internal manuals, options documents, diagnostics materials and related correspondence show that the record presented to the Court was dishonestly shaped and maintained by contrivance, and falsely verified, knowingly, intentionally or recklessly, in ways that mattered to the outcome;

(c) product descriptions PD2 and PD3, together with the interrogatory answers and the evidence structured around them, presented a plausible but materially misleading narrative;

(d) those product descriptions were given and verified in circumstances where Lazer Safe held internal technical manuals, options materials and diagnostics materials describing materially more sophisticated image-derived functionality;

(e) the applicant now relies on internal Lazer Safe technical manuals (KD101-KD107), together with lawyers' correspondence, material from WAD 670 of 2015 (the Lazer Safe proceeding) and subsequent affidavits; and

(f) those materials show that, when PD2 and PD3, the interrogatory answers and the expert evidence were prepared and verified, Lazer Safe and Mr Appleyard knew, or ought to have known, that the systems captured and processed tool silhouette or shadow information, expressed that information at pixel and segment level in forms suitable for display, diagnostics, comparison, alignment and control, had image information sufficient to determine substantial portions of shadow boundaries, and used that information in ways going beyond a mere "single segment stop".

1. The nature and scope of the proceeding proposed to be initiated by Mr Davies, for which he seeks leave to file, is materially the same as that for which Mr Davies sought leave to file from Colvin J. Before Colvin J, Mr Davies also sought leave to bring an application under r 39.05(b) of the FC Rules to set aside the findings made at [265]-[279] of Lazer Safe 2018 that there had been no infringement of integer 1.6 of the patent in suit. In support of his allegation of fraud, Mr Davies also principally relied upon the description of Lazer Safe's product and system in its internal products manuals exhibited to affidavits made by Mr Davies and marked KD101-KD107. The substance of Mr Davies' claim remains the same. Mr Davies seeks to re-open the proceeding so as to adduce in evidence later acquired documents (the product manuals in KD101-KD107) in an effort to show:

(a) first, that the product descriptions of Lazer Safe's products, on which the Lazer Safe trial was conducted, were false or misleading;

(b) second, that the Court should infer that this was known (or ought to have been known) by Lazer Safe; and

(c) third, that the determination in Lazer Safe 2018 was the result of fraud on the part of Lazer Safe.

1. Justice Colvin dismissed the application. His Honour observed that impeaching a factual finding on the basis of new evidence does not establish fraud in the conduct of the original proceeding.
2. There is one difference between the present application and the application made before Colvin J, but the difference is not material for present purposes. By the present application, Mr Davies seeks leave to commence a fresh proceeding to bring an application to set aside Lazer Safe 2018. By his application made before Colvin J, Mr Davies sought to proceed in the original Lazer Safe proceeding (WAD 670 of 2015). In Davies 2025, Colvin J observed (at [14]) that the appropriate course in advancing an application to set aside a judgment on the basis of alleged fraud is to commence fresh proceedings. Whilst Mr Davies' present application complies with that requirement, all of the other problems with his proposed proceeding identified by Colvin J remain.
3. As found by Colvin J, the most fundamental defect in Mr Davies' proposed proceeding is the failure to allege facts that provide a proper basis for the serious allegation of fraud. On the present application before me, the allegations in the Concise Statement are wholly inadequate. They assert mere conclusions. There is nothing in Mr Davies' affidavits dated 27 January 2026 and 2 April 2026 or his written submissions that properly support the allegation of fraud. At their highest, they constitute mere speculation. Those documents serve to confirm that Mr Davies' application is an attempt to relitigate one aspect of the Lazer Safe proceeding, viz, whether Lazer Safe infringed integer 1.6 of the patent in suit, on the basis of documents that were not in evidence at the original trial. As observed by Colvin J, that is not to assert any recognisable form of fraud of a kind that would justify reopening the proceedings.
4. In my view, Mr Davies' further application for leave is materially the same as was considered and dismissed by Colvin J. It is an abuse of the processes of the Court for Mr Davies to re-agitate materially the same application that has previously been dismissed by the Court.
5. For those reasons, Mr Davies' application is dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.