Firth Industries Ltd v Polyglas Engineering Pty Ltd [1975] HCA 25

High Court of Australia Stephen J. Firth Industries Ltd v Polyglas Engineering Pty Ltd [1975] HCA 25

ORDER Upon the fourthnamed defendant by its counsel undertaking to the Court to pay to the plaintiffs whatever damages they or any of them may be held ultimately to be entitled to recover in this action from any of the defendants, and upon the defendants by their counsel undertaking to the Court pending the determination of this action to keep an account of all sales of compost bins and of all moneys derived from such sales, application by the plaintiffs for an interlocutory injunction refused. Costs reserved.

Cur. adv. vult.

J Stephen delivered the following written judgment:—

July 25 Stephen J

By this application for interlocutory relief the plaintiffs seek to restrain the defendants from infringing Australian letters patent for an invention entitled "Improvements in or relating to composting" of which the plaintiff company is patentee. The two individual plaintiffs, Mr. and Mrs. Gedye, are the plaintiff company's licensees in Australia and as such licensees are engaged in the marketing of compost bins which are manufactured for them by contract plastic moulders. Each of the defendants is alleged to have played a part in acts of infringement involved in the manufacture and marketing in Australia of compost bins which are sold in competition with the Gedyes' bins. The function of both brands of compost bins is to assist in the process of natural decomposition of domestic waste products so that such products may be converted conveniently and relatively quickly into garden compost; the present market for these bins is principally among suburban home gardeners.

On the hearing of this application a considerable body of affidavit evidence was tendered on both sides and I heard argument as to the validity of the letters patent, their alleged infringement and the principles which should govern the grant or refusal of interlocutory relief, with particular reference to the decision of this Court in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. [24] and what was said to be the rather different approach of their Lordships in the very recent case of American Cyanamid Co. v. Ethicon Ltd. [25] . Much of what was said in the Beecham Group Case [24] relates to principles applicable only where there exists a substantial issue to be tried as to validity of a patent; the Court held that no such issue in fact existed in the case before it and its enunciation of principle was to that extent obiter. However I believe that I should not on this application disregard that careful enunciation of principle by a unanimous Court; nor do I regard what is there said merely as a description of then existing practice on applications for interlocutory relief in cases where substantial issues exist as to validity of a patent but rather as express approval of that practice. The practice may now be otherwise in the United Kingdom following the decision in the American Cyanamid Case [25] but as a single judge of this Court I should, I think, adhere to the practice approved of by this Court in the Beecham Group Case [24] .