Cash's (Australia) Pty Ltd v Foster's Australia Ltd

Cash’s (Australia) Pty Ltd sought leave to appeal an interlocutory decision in its proceeding against Foster’s Australia Ltd in which the Federal Court rejected Cash’s defence to Foster’s claims of patent and design infringement. Cash’s argued that the patents and designs in question were invalid as they were originally applied for in the name of another Foster’s Group company, Foster’s Group Ltd, and not Foster’s Australia Ltd. The Court held that Cash’s was not entitled to orders under s 138 of the Patents Act 1990 (Cth) and s 93 of the Designs Act 2003 (Cth) revoking the patents and designs that Foster’s Australia Ltd claimed had been infringed by Cash’s. The Court was required to consider whether Cash’s application for leave to appeal should be granted. The Court’s discretion to grant leave is not absolute and it is generally recognised that the major considerations for the Court are whether the judgment of the primary judge is attended by sufficient doubt to warrant reconsideration by the Full Court and whether substantial injustice would result if leave were refused. While the issues raised by the preliminary questions were complex and involved questions of statutory construction which are novel, the Court found that the matter should proceed to trial in its entirety. The Court considered that it was more in the interests of the parties to progress the matter for trial and for the whole proceeding to be heard and determined than to fragment the proceeding further. The application for leave to appeal was therefore refused.