Graco Children's Products Inc. v Britax Child-Care Products Pty Ltd

[2000] APO 66

OFFICIAL NOTICE

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Application  :          No. 688322 in the name of GRACO CHILDREN'S PRODUCTS INC.

Title:          Collapsible stroller.

Action: Opposition under Section 59 of the Patents Act by BRITAX CHILD-CARE PRODUCTS PTY LTD.

Decision:          Issued  .

Abstract:

The claimed invention in application 688322 is novel and inventive over all the cited material presented by the opponent.  None of the cited material clearly illustrate or describe a latching arrangement on a stroller that enables automatic release and movement of the back rest or movable passenger support portion from an inclined position to a reclined position when the stroller is collapsed.

Specification 688322 also complies with the requirements for sufficient description of the invention, and for clarity and fair basis of claims.

The opponent was unsuccessful in opposing the application.

PATENTS ACT 1990

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Re:Patent application 688322 by GRACO CHILDREN'S PRODUCTS INC., and opposition under section 59 by BRITAX CHILD-CARE PRODUCTS PTY LTD.

BACKGROUND

Graco Children's Products Inc ("Graco") filed patent application 688322 on 19 April 1994.  The application claims priority from a United States application filed on 20 April 1993.  Patent application 688322 was advertised accepted on 12 March 1998. 

Britax Child-Care Products Pty Ltd ("Britax") filed a notice of opposition to the grant of a patent on the application on 11 June 1998.  On 11 September 1998 the company filed a statement of grounds and particulars in support of the opposition.  Two requests by Britax to amend this statement have been allowed on 16 and 31 March 1999 respectively. 

Britax filed partial evidence in support of their opposition on 2 February and 9 March 1999 under allowed extensions of time to serve evidence.  After gaining a further extension of time (Graco Children's Products Inc v Britax Child-Care Products Pty Ltd [1999] APO 28), Britax were due to complete the serving of their evidence in support on 11 May 1999.

On 11 May 1999 Britax filed an application to serve further evidence together with a consequential third request to amend the statement of grounds and particulars.  A delegate of the commissioner of patents refused these requests in a decision dated 2 August 1999 (Graco Children's Products Inc v Britax Child-Care Products Pty Ltd, 46 IPR 241).

After also gaining extensions of time to serve evidence, Graco served partial evidence in answer on 13 December 1999 together with an application for further extension of time to complete their evidence.  Subsequently on 5 January 2000 Graco stated they would not serve any additional evidence in answer and would rely only on the evidence filed on 13 December 1999.

On 5 April 2000 Britax completed the serving of evidence in reply. 

The matter came to a hearing in Melbourne on 6 July 2000.  Mr Graham Cowin, patent attorney of Phillips Ormonde and Fitzpatrick, represented Graco.  Mr Craig Vinall, patent attorney of Madderns, represented Britax.

SPECIFICATION

The specification describes the invention as relating to a collapsible stroller.  A primary object of the invention as described in the specification is to provide a stroller that is readily collapsible regardless of whether the back rest of the seat is in the upright or reclined position.  In this respect an essential feature of the invention is a latch having interacting members on the frame of the stroller and on a passenger support portion of the stroller respectively.  A further essential feature is the following.  The latch, frame and support portion are configured to interact so that, when the support portion is in a first position and the frame is moved from its operating position to its collapsed position, the latch automatically releases the support portion to enable its movement automatically to a second position. 

A secondary object of the invention is to angle the handle of the stroller in an ergonomically correct manner.

The specification ends with 32 claims.  The main claims are claims 1, 5 and 15.

Claim 1 reads as follows:-

A collapsible stroller for transporting a passenger, said stroller including:

a frame movable between a collapsed position and an operating position;

a passenger support for receiving the passenger, at least a portion of the support being movably mounted on said frame between a first position and a second position in said operating position, wherein said passenger support includes a seat mounted on said frame and said movably mounted portion of said passenger support includes a back, wherein said back is positioned upperly for receiving the passenger in a seating position at said first position and said back is moved rearwardly and positioned for receiving the passenger in a recumbent or lying position at said second position; and

a latch having interacting members mounted on said frame and said back, said latch releasably holding said back in said first position, said latch, support and frame being configured such that when said back is in said first position and said frame is moved from said operating position to said collapsed position said latch automatically releases said back such that said back automatically moves to said second position.

Claim 5 defines the passenger support in broader terms than claim 1.  In claim 5 the passenger support is simply defined as having a portion thereof movably mounted on the frame between a first and a second position.  On the other hand claim 5 defines the latch more narrowly than claim 1 to further include a preferred boss and slot arrangement.

Claim 15 defines a frame for a collapsible stroller in terms of the pivotal interconnection of legs and arms with each other and with a base frame together with a support frame and latching device.  The latching device enables release of the support frame from a first position to a second position when a handle of the frame is pivoted relative to two of the legs.

GROUNDS OF OPPOSITION

In their amended statement of grounds and particulars as of 31 March 1999, Britax state the invention as claimed in the claims of application 688322 is not a patentable invention because the invention is not novel and does not involve an inventive step.  Britax also assert the complete specification does not fully describe the invention or disclose the best method of performing the invention.  Furthermore Britax state that, consequent to this assertion against the complete specification, certain claims of the application are not clear and succinct or fairly based on matter described in the specification.

EVIDENCE

Britax's evidence in support consists of two declarations by Mr Alan Reynolds, technical manager at Britax, a declaration by Mr Lin Chao Hsi ("Mr Lin"), a director of another company developing, selling and marketing infant and child products, and a declaration by Mr Tony Kearney, an industrial designer.

Mr Reynolds asserts that various items of prior art including a patent specification, a registered design, and brochures from stroller manufacturers, display strollers having an automatic release mechanism for the passenger portion when the strollers are collapsed.  He is also critical of the present specification.  Mr Reynolds states the description of the invention does not adequately describe the latch particularly in respect to the use of the terminology of a slot.  He also says the description does not adequately describe the ergonomics of the handle.  On the latter two points Mr Reynolds relies on Mr Kearney's following comments for support.

Mr Kearney criticises the present specification for inadequate description of the handle and for the specification's use of the term, "slot", in respect to the latch.  In respect to the handle Mr Kearney states it is not possible to know the configuration of the handle because an end view of the stroller has not been illustrated in the specification.  In respect to the slot Mr Kearney's exhibits include excerpts from dictionaries giving meaning to the term.  Mr Kearney asserts the term "slot" suggests an aperture rather than an open ended channel for receiving and disengaging a boss. 

Mr Lin's exhibits include excerpts from several catalogues.  He asserts some of these catalogues show strollers where the back rests have to be in reclined positions to enable the strollers to fold flat.  He says the latches used on these strollers would automatically release the back rests if the back rests were in their upright positions as the strollers were being collapsed.

Graco's evidence in answer consists of a declaration by Mr Robert Evan Haut, lead senior design engineer for Graco.  He discusses the project history leading to the development of the "Lite Rider" stroller on which the present application is based.  On the other hand he notes several items of prior art cited in the evidence in support do not clearly show automatic release mechanisms for the back rest.  Additionally, while Mr Haut acknowledges an error in labelling the handle in some drawings of the specification, he disputes any inadequacy in the description of the invention in respect to the handle or the use of the term, "slot", to describe part of the latching arrangement.

Britax's evidence in reply consists of declarations by Mr Reynolds and Mr Kearney.  They essentially maintain the term, "slot", is misleading, and that the disengagement of the boss from the slot is not clearly explained in the specification.  Mr Reynolds further maintains certain prior art, submitted as evidence in support, discloses back rests automatically moving from upright to reclined positions when the strollers are collapsed.

DECISION

NOVELTY

The Meyers Taylor Pty Ltd v Vicarr Industries Ltd decision, (1977) 137 CLR 228, provides an appropriate test for novelty. The test is also known as the "reverse infringement test". Aickin J., at page 235, states:

"The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement."

The Rodi and Wienenberger AG v Henry Showell Ltd decision, (1969) RPC 367, states that infringement occurs where each and every one of the essential features of a claim is taken.

A practical application of the above decisions suggests a claim lacks novelty if a prior citation discloses all of the essential features of a claim.  I will apply this test to the present case.

At the hearing Britax relied essentially on three items of alleged prior art. 

Australian patent application 13384/88

The first item is Australian patent application 13384/88 by Jane, S.A. ("the Jane stroller").  This application was published on 27 January 1989 and is well before the priority date of 20 April 1993 of the present application 688322. 

Mr Vinall said that Mr Reynolds states it is clear from both the description and drawings of application 13384/88 how the Jane stroller collapses when the back rest is latched in the upright position.  The stroller has a support rod that holds the back rest in different positions depending on which of three notches the support rod engages on ear pieces associated with the backrest.  Mr Reynolds asserts the downward movement of the pivot end of the back rest, when collapsing the stroller, causes the support rod to disengage from either of the upper two notches whereupon springs will pull the support rod to the lower notch thereby enabling the stroller to fully collapse.  Mr Reynolds states the mechanism that holds the back rest in its upright position consequently allows the back rest to automatically move to its reclined position when collapsing the stroller.

Mr Cowin submitted the Jane stroller does not clearly and unmistakably teach what is going on with the back rest during folding of the stroller.  He cited Mr Haut's evidence as support.  Mr Haut states there is no explanation in the Jane specification as to the interaction of the back rest, support rod, ear pieces and springs during folding of the stroller.  Consequently Mr Cowin suggested there is an element of speculation on Mr Reynolds' part in exactly how the stroller operates during folding. 

The Jane specification discloses a stroller with support rod for holding the back rest in any of three positions.  These positions are an upright position, an intermediate position and a reclined position.  The engagement of the support rod in one of three notches on earpieces associated with the back rest determines the incline of the back rest.  Mr Reynolds asserts the downward movement of the pivot end of the back rest, when collapsing the stroller, causes the support rod to disengage from either of the upper notches whereupon springs will pull the support rod to the lower notch corresponding to the back rest's reclined position.  On the other hand the description and drawings of the Jane stroller do not appear to be that informative on this point.  The operation of the springs is briefly described on page 5 of the specification.  The springs ensure the retention of the back rest in any of the three positions by pulling the support rod towards the lower part of the back.  Consequently the springs retain the support rod in the appropriate notches of the ear pieces.  This is opposite to the presently claimed invention that requires automatic release so that the back rest or movable passenger support portion automatically moves to the reclined position when the stroller is collapsed.

I conclude the presently claimed invention is novel over the Jane stroller.

Steelcraft Rascal Deluxe stroller (Australian registered design 117209)

The second item of alleged prior art is a set of drawings (exhibit AR2) of a stroller that Mr Reynolds states is a product known as a Steelcraft Rascal Deluxe stroller.  Mr Reynolds also refers to Australian registered design 117209.  The drawings exhibited by Mr Reynolds are substantially identical to the drawings of the registered design.  This design was registered on 1 June 1993.  This date is after the priority date of the present patent application.  As the priority date is not under any challenge then prima facie the registered design on its own does not form part of the prior art.  On the other hand Mr Reynolds has further tendered evidence of the prior sale of Rascal Deluxe strollers by way of an invoice dated 3 March 1993.  However I find this evidence inconclusive as there is no clear indication that the drawings of the registered design are in fact representations of the Rascal Deluxe strollers as invoiced on 3 March 1993. 

In any case I will briefly consider the drawings of the Rascal Deluxe stroller.  Mr Vinall cited the decisions, C Van Der Lely NV v Bamfords Limited, (1963) 80 RPC 61, and Rear v SDS Digger Tools Pty Ltd, (1996) 36 IPR 549. From these decisions he said a finding of anticipation based on what is shown in photographs and drawings is to be determined by what a person with appropriate engineering skill and experience would see in the photographs and drawings. Mr Vinall said it is clearly a matter for expert evidence alone and not what patent practitioners or hearing officers may see in the photographs and drawings. Mr Vinall also submitted that Mr Reynolds is an expert in the art of design and manufacture of strollers. Consequently Mr Vinall suggested I should have high regard to Mr Reynolds' statements.

Mr Reynolds relies on the drawings equivalent to the registered design as well as an additional set of drawings (exhibit AR6) of features of the latch allegedly used on the Rascal Deluxe stroller.  With reference to these drawings Mr Reynolds outlines a folding action of the stroller.  He concludes this stroller is capable of being collapsed, even with the back rest initially in the upright position, by movement of sliders along supports of the back rest which in turn allows the back rest to automatically move to its reclined position.

Mr Cowin firstly noted the additional drawings (exhibit AR6) featuring a latch itself do not form eligible prior art since there is no evidence of their public disclosure before the priority date of the present application.  In any case Mr Cowin also stated neither the drawings of the registered design nor the additional drawings teach what Mr Reynolds has described.  Mr Cowin said the drawings themselves do not disclose the folding action.  He suggested Mr Reynolds is doing the teaching, not the drawings.

I must accept Mr Cowin's position concerning exhibit AR6.  There is no evidence to support the additional drawings being eligible prior art.  In respect to the drawings associated with the registered design, these drawings all show a stroller in expanded operating configuration only.  There is no illustration of intermediate or fully collapsed positions of the stroller.  It is very well for Mr Reynolds to say the drawings depict a Rascal Deluxe stroller and then state this particular stroller collapses in a certain way to enable automatic movement of the back rest to the reclined position.  However while I accept Mr Vinall's assertion that I should regard drawings as seen by the eyes of a person of appropriate skill in the field, the drawings must still support the statements made by such a person.  In the present case though, the drawings themselves do not support Mr Reynolds' statements of how this stroller collapses, let alone show any mechanism clearly enabling automatic release and movement of the back rest to the reclined position.  The drawings only show the stroller in the expanded operating configuration.  These drawings are completely inadequate in disclosing a latching mechanism functioning in the way claimed in the present application.

1993 Century Products catalogue

The third item is a 1993 catalogue by Century Products Company.  Mr Lin states product catalogues for Graco and other manufacturers in the industry, such as Century Products, are normally published in the year preceding the date shown on the catalogues.  By example Mr Lin states he obtained the 1989 Graco catalogue in 1988 at the Juvenile Product Manufacturer's Association trade fair in Dallas, Texas, USA.  He also says he recalls the 1993 Century catalogue being available at the corresponding 1992 trade fair.

Mr Cowin stated that Mr Lin seems uncertain whether the 1993 Century catalogue was publicly available at the 1992 trade fair.  Mr Lin merely recalls the catalogue being available at that fair, not that he obtained the catalogue there.  Consequently Mr Cowin suggested there is doubt regarding the public availability of the catalogue prior to the priority date of the present application.

It may appear that Mr Lin is a little uncertain in respect to the availability of the 1993 Century catalogue at the 1992 trade fair.  On the other hand his statements concerning other catalogues routinely being available in the year prior to that shown on the catalogues are more authoritative.  I am prepared to accept the 1993 Century catalogue was publicly available before the priority date of the present application.

Mr Lin specifically refers to a stroller known as the Travelite 11-140 stroller shown on page 44 of the 1993 Century catalogue.  He further provides a copy (exhibit LCH5) of page 44 with an alleged latch of the stroller being circled.  Mr Vinall pointed out that Mr Lin states this page of the catalogue clearly shows a latch to secure the back rest in an upright position and that the latch automatically releases the back rest if it is in an upright position when the stroller is collapsed.  Mr Vinall thereby concluded the 11-140 stroller has an automatic latching mechanism enabling automatic release and movement of the back rest to a reclined position as claimed in the present application.

Mr Cowin noted the latch is not referred to in the brief description of the stroller on page 44 and is not immediately identifiable from the drawing of the stroller.  Even if Mr Lin is correct that the circled area of exhibit LCH5 shows a reclining latch, Mr Cowin submitted the catalogue still falls a long way short of supporting Mr Lin's statement that the catalogue shows the latch being used to hold the back rest in the upright position.  Mr Cowin stated there is nothing in the drawing or description to show what the alleged latch does.

The drawing of the 11-140 stroller only shows a stroller in expanded, operational configuration.  While the accompanying brief description refers to an easy-fold system, the description does not provide any details of how this system works.  Similarly the copy of the corresponding instruction card (exhibit LCH6) is in respect to adjustment of the position of the back rest only, not collapsing of the stroller.  It is very well for Mr Lin to say the area he has circled in exhibit LCH5 depicts a latch that secures the back rest and automatically releases the back rest if it is in an upright position when the stroller is collapsed.  However neither the drawing or description supports this statement.  There is no indication in either the drawing or the description themselves of what this alleged latch does.  The drawing and description are inadequate in disclosing a latching mechanism functioning in the way claimed in the present application.

I conclude the claimed invention is novel over the 11-140 stroller shown in the Century Products catalogue.

INVENTIVE STEP

Mr Vinall stated that Britax would not rely on any additional argument in respect to inventive step other than that a finding of lack of inventive step would follow from a finding of lack of novelty.  However inventive step is tested under different parameters to those of novelty.  Inventive step is assessed in the light of the common general knowledge existing in the relevant field at the priority date of the application.  An appropriate test for inventive step is whether a person skilled in that field, and faced with the same problem, would have taken as a matter of routine whatever steps might have led from the prior art to the invention (Wellcome Foundation Ltd v VR Laboratories (Aust.) Pty Ltd, (1981) 148 CLR 262 at page 286).

Britax's declarants do not specifically comment on common general knowledge in the field of strollers at the priority date of the application.  They also do not specifically suggest what improvements would have been obvious to people skilled in the field at that date. 

Consequently I must conclude the claimed invention involves an inventive step on the available evidence before me.

SUFFICIENCY OF DESCRIPTION; CLARITY AND FAIR BASIS OF CLAIMS

Mr Vinall raised two assertions in respect to the specification.  The first is that it is not clear in the description of the invention how the boss and slot of the latching mechanism disengage.  Mr Vinall stated the word "slot" does not properly describe a component that would enable the release of the back rest as illustrated and described.  He referred to Mr Kearney's declaration to say the ordinary dictionary meaning of the word "slot" suggests an elongated aperture.  In this respect Mr Kearney states the specification does not illustrate the slot with sufficient clarity to support Mr Haut's assertion that the specification discloses a slot with an open end, for disengaging the boss, and a closed end opposite thereto.  Furthermore Mr Kearney states there would need to be some clearance between the boss and the slot, when the boss disengaged through the open end, to prevent the latch from jamming.  There is no reference in the specification to the requirement for clearance between the boss and the slot.

Mr Cowin referred to Mr Haut's comments to say Britax have not given due consideration to the description of the invention.  Mr Cowin submitted the suggestion that the slot must be an aperture that is bounded on all sides is a narrow definition of the term "slot" and is inconsistent with the dictionary meaning and the description.  He pointed out that the definition of "slot" as cited by Mr Kearney, being a narrow, elongated depression or aperture, does not infer the slot must be closed at both ends.  Mr Cowin also noted the description of the invention mentions and illustrates a slot that is open at one end and closed at the opposite end.  He further noted the specification clearly mentions at page 14 that the slot could be open at both ends.

Principles for construing patent specifications are well established.  In the first instance the words of a specification are to be given their plain and ordinary meaning (Interlego AG v Toltoys Pty Ltd (1973) 130 CLR 461 at 478). On the other hand the specification may indicate a special meaning is to apply. A special meaning may only prevail over the plain and unambiguous meaning if the special meaning is clearly expressed. The British Thomson-Houston Company Ld v Corona Lamp Works Ld decision, (1922) 39 RPC 49 at 67, entitles a draftsman to use the specification as a dictionary if expressions have been adequately interpreted in the body of the specification. The dictionaries cited by Mr Kearney broadly define a slot as an elongated, narrow depression or aperture or perforation. This may be interpreted as the plain meaning of the term "slot". Mr Kearney further expresses the view that this definition requires both ends of the U-shaped channel of the slot to be closed. On the other hand the specification, at page 14 lines 24 to 27, clearly expresses a broader view. The slot could be open at both ends. Furthermore, while Britax suggest there is insufficient clarity in the description and drawings to show how the back rest is released, their declarants, especially Mr Kearney, have had no difficulty in correctly identifying the slot must have at least one open end to enable the stroller to operate as described. Consequently the meaning of "slot" must be such that either one or both ends of the slot are open. I conclude the specification sufficiently describes the boss and slot arrangement of the latch.

The second assertion raised by Mr Vinall in respect to the specification is that there are major deficiencies in relation to the orientation of the gripping portion of the stroller's handle.  He cited Mr Kearney's declaration and stated the specification does not describe or provide an end view of the stroller that would make the orientation apparent.  Mr Vinall also noted two features in Figure 4 in respect to the gripping portion of the handle are incorrectly labelled.  Mr Vinall submitted these deficiencies and errors would not be able to be rectified by a skilled addressee without the exercise of inventive ingenuity. 

Mr Cowin accepted that additional drawings showing additional views of the gripping portion of the handle would lead to a greater understanding of the portion's configuration, shape and orientation.  On the other hand he submitted the existing drawings, which show two different views of the gripping portion, are sufficient to illustrate the aspects of the gripping portion.  Mr Cowin further submitted a skilled addressee would readily be able to identify the appropriate rectification of the errors in Figure 4 upon careful reading of the specification as a whole.

The Welch Perrin and Co Pty Ltd v Worrel decision, (1961) 106 CLR 588 at 610, states if it is impossible to ascertain what the invention is from a fair reading of the specification as a whole, that is the end of the matter. The decision further states this objection is not established by reading the specification in the abstract. It must be construed in the light of the common knowledge in the art before the priority date. In this light the specification satisfies the requirement for a full description if it is possible for a person skilled in the art at the priority date to ascertain the nature of the invention from a reading of the specification as a whole, including the claims.

Britax's declarants do not specifically address the state of the common general knowledge in respect to handles of strollers.  Consequently I do not have the benefit of expert evidence on this point.  In any case I expect there would have been nothing particularly difficult to anyone at the priority date about what is said in the specification about the handle.

The object of the invention in respect to the handle is discussed at page 2 lines 1-11 of the specification.  This passage of the specification specifically discusses the problems of horizontally aligned gripping portions.  The object is to provide a gripping portion of a handle that is ergonomically correct.

I accept that drawings showing features of a device from multiple angles would enhance a person's understanding of how the features appear.  However the absence of such drawings does not necessarily make the specification deficient.  In the present case the drawings show two views of the gripping portion of the handle.  One is a side view (Figure 1) while the other is a top view (Figure 4).  While an end view of the gripping portion may further assist in determining the exact curvature of the gripping portion, Figure 1 clearly illustrates the relative height of the gripping portion and Figure 4 clearly illustrates the curvature of the gripping portion between the ends.  The specification states (page 5 lines 22-26) the first and second areas of the gripping portion extend at an angle of less than one hundred eighty degrees with respect to each other and that this provides the gripping portion with an ergonomically correct design.  I am satisfied Figures 1 and 4 and the descriptive part of the specification, in combination, adequately illustrate and describe the gripping portion to enable an appropriate person skilled in the art to broadly determine the shape of the portion. 

In respect to the incorrect labelling of areas of the gripping portion in Figure 4 it may not immediately be apparent that there is an error or what the correction ought to be.  In his declaration Mr Kearney noted there is no reference in Figure 4 to the first or second areas of the gripping portion as described.  This suggests Mr Kearney realised there is an error in the form of an omission.  On the other hand Mr Kearney also states (paragraph 12) the gripping portion includes a first and second area 16a and 16b which presumably relate to the left and right hand of a user.  This suggests that, from reading the specification as a whole, Mr Kearney has been able to deduce the specific relationship of the first and second areas with respect to each other and with the handle as a whole.  Furthermore the specification clearly describes the gripping portion as including a first area 16a for receiving a first hand of a user and a second area 16b for receiving a second hand of a user (page 5 lines 18-21).  I conclude the incorrect labelling of these areas of the gripping portion in Figure 4 does not detract from properly understanding the specification.

Overall I conclude the specification sufficiently describes the invention. 

Consequently Britax's assertions against the clarity and fair basis of the claims, on the basis of lack of sufficient description of the invention, also fail.

CONCLUSION

The claimed invention in specification 688322 is novel and inventive over all the cited material presented by Britax.  The specification also complies with the requirements for sufficient description of the invention, and for clarity and fair basis of claims.  Britax have been wholly unsuccessful in their opposition to the patent application.

I direct the application may be sealed after twenty-eight (28) days from the date of this decision.

If the Commissioner of Patents is served with a notice of appeal from this decision before that time, I direct that sealing not occur until the appeal has been decided or discontinued.

COSTS

Both parties submitted that costs should follow the event.  I see no reason to depart from this practice in this case.

I award costs against Britax Child-Care Products Pty Ltd.

M.G. Kraefft

Delegate of the Commissioner of Patents

Attorneys for the applicant  :  Phillips Ormonde & Fitzpatrick, Melbourne

Attorneys for the opponent  :  Madderns, Adelaide