Martin v Scribal Pty Ltd [1954] HCA 48

High Court of Australia Dixon C.J. Fullagar and Taylor JJ. Martin v Scribal Pty Ltd [1954] HCA 48

ORDER Plaintiff's Appeal from the Judgment in Action No. 314 of 1947. Appeal dismissed. Plaintiff's Appeal from the Judgment in Action No. 58 of 1951. Order that if within two months of the date on which this judgment is pronounced the plaintiff appellant notifies the defendant respondent and the Principal Registrar in writing that he desires that there be a further trial of the issues raised by the fifth and sixth particulars of objection dated 19th July 1951, then set aside the judgment appealed from and direct that there be a further trial of the action limited to those issues, the other issues in the action being treated as determined in favour of the plaintiff and that the costs of the action be disposed of by the judge at such further trial. If the plaintiff appellant do not so notify the defendant respondent and the Principal Registrar then dismiss the appeal. Defendant's Appeal in respect of Action No. 58 of 1951. Appeal from so much of the orders or judgments of 15th June 1953 and of 22nd June 1953 as in the notice of appeal are referred to allowed. Discharge such orders. Reserve the question of the costs of all the appeals for the further order of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 14 Dixon C.J.

The proceeding before us consists of two appeals and a cross-appeal, all argued together. The appeals are by the plaintiff from judgments of the Supreme Court of Victoria (Sholl J.) pronounced for the defendant in two actions for infringement of patents. One action (No. 314 of 1947) was commenced on 9th May 1947. It was based on a patent granted to the plaintiff as of 8th December 1943 which it was alleged the defendant had infringed. The action failed because it was held that on the proper construction of the specification there was no infringement. The second action (No. 58 of 1951) was commenced on 24th April 1951. It was based on a patent granted to the plaintiff as of 31st December 1943 which again the defendant was alleged to have infringed. This action failed on the ground that the claims were void for ambiguity and in any case that they were so constructed or expressed that no infringement was committed. The cross-appeal by the defendant relates to action No. 58 of 1951. It is an appeal by leave from part of an interlocutory order determining certain questions of law before the trial of the action and from a further interlocutory order determining certain issues before such trial.