Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1

High Court of Australia McTiernan J. Kitto, Taylor, Menzies and Owen JJ. Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1

ORDER Appeal allowed with costs. Order appealed from discharged. In lieu thereof orders as follows:—

1. The plaintiff by its counsel undertaking to abide by any order this Court may make as to damages in case this Court shall hereafter be of opinion that the defendant shall have sustained any, by reason of this order, which the plaintiff ought to pay, Order that the defendant its directors officers servants and agents be restrained until judgment or further order from advertising offering for sale selling or supplying the antibiotic Versapen or hetacillin or any preparation containing the same or otherwise infringing the plaintiff's patents of the Commonwealth of Australia numbered respectively 232,312, 238,912, and 254,284 or any of them.

2. The plaintiff's costs of the motion to be its costs in the cause.

Cur. adv. vult.

1967, Jan. 17 McTiernan J. delivered the following written judgment:—

The duty of the Court upon this motion for an interlocutory injunction is to consider whether the plaintiff has made out a prima facie case for the relief claimed. The question whether the plaintiff has done so depends upon all the evidence and whether, if it remains as it is, it appears probable that at the hearing of the action the plaintiff will get a decree in its favour. I think that a court should be very reluctant to interfere by interlocutory injunction with the rights of the defendant unless the plaintiff has clearly made out a prima facie case. There is a strong conflict of affidavits. The affidavits show that there is a serious and substantial dispute between the parties as to whether the defendant is infringing the plaintiff's patent rights. I cannot dismiss the possibility that the defendant might not fail at the hearing. However, I feel bound to say that I doubt whether the plaintiff has made out a case for an injunction at this stage. If I were of the opinion that the plaintiff had made out a strong enough case on the question of infringement for interim relief then a most important consideration would be the relative convenience or inconvenience to the parties of granting or withholding an injunction. Having regard to the evidence adduced by each side on this issue it would seem that the balance of convenience would be strongly against the grant of an interim injunction pending the trial.