Caterpillar Inc v Sun Forward Pty Ltd

The case before Merkel J involved a motion for leave to appeal by the respondent, Sun Forward Pty Ltd, against interlocutory judgment orders made by Drummond J in a case involving Caterpillar Inc and Desert Storm Management Proprietary Limited. The primary issue before Merkel J was whether leave to appeal should be granted. The court considered the legal principles that apply to granting leave to appeal, specifically whether such leave should only be granted if the judgment is attended by doubt and substantial injustice would result if leave were refused. The court also considered whether special circumstances warranted granting leave to appeal.

Merkel J found that special circumstances did indeed warrant granting leave to appeal in this case. The final orders in the interlocutory judgment affected the substantive rights of the parties and granted final injunctive relief. The respondent had been subjected to a claim for summary judgment, which resulted in final and interlocutory relief. The court found that it was in the interests of justice for the respondent to pursue its rights of appeal earlier rather than later, and that the grant of leave would not prejudice the further hearing of the proceeding.

The second application before Merkel J was for orders enabling the applicants to prosecute their separate and independent interlocutory judgment for breach of copyright. The applicants sought orders for discovery to enable them to make an informed election between alternative remedies in damages and an account for profits. The court made orders for discovery, subject to modifications discussed in argument.

Merkel J granted the respondent leave to appeal against the interlocutory judgment orders and made orders for discovery as requested by the applicants.