Nylex Corporation Ltd v Dawn Plastics Pty Ltd [1986] FCA 572

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT R STRY VG No. 331 of 1986

GENERAL DIVISION

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NYLEX CORPORATION LIMITED Applicant and SABCO LTD Respondent

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTOR DISTRICT REGISTRY ) VG No. 366 of 1986 ) ) )

GENERAL DIVISION

BETWEEN

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NYLEX CORPORATION LIMITED Applicant and DAWN PLASTICS PTY LIMITED Respondent

COURT: Woodward J. DATE: 26 November 1986

PLACE: Melbourne

EX-~TEMPORE JUDGMENT

In this matter I am clearly of the view that the question of liability should be tried first and separately from

the question of damages. I say that for several reasons, one being that the most important part of the claim, as 1t appears to me, is the claim for an injunction which would prevent the respondent from selling the disputed product. Because we are coming up to the main selling season for this particular product, every few weeks that pass can make a difference to the amount of damages which may ultimately have to be borne if the decision should go in favour of the applicant. And for that reason I think that anything which ensures that the case comes quickly to trial, and enables injunctions to be given, if that should be the

outcome, is to be encouraged.

Anything which would tend to delay, which would use up time - whether in preparation for trial or in the trial itself - should be discouraged. The amount of damages is a matter which, if we have to come to it at all, can properly be examined at more

leisure after the basic question has been determined.

My second reason for thinking that, in this case in particular, it is desirable to deal with liability first, is the view which I have already expressed that, on the evidence as it stands, the applicants' prospects of success are not strong. That is not to say that the applicant may not succeed, either in the light of additional evidence, or even on the evidence as it stands; but it is not a case in which one can be confident that the issue of damages will eventually be reached. That is another strong reason why time should not be spent investigating that