Malleys Ltd v J W Tomlin Pty Ltd - [1961] HCA 77

HIGH COURT OF AUSTRALIA

TAYLOR, MENZIES AND OWEN JJ

MALLEYS LIMITED v J. W. TOMLIN PTY. LIMITED

(1994) 180 CLR 120

30 November 1961

Designs—Registrable design—Novelty—Originality—Individuality of appearance—Function—Infringement—Imitation—Fraudulent imitation—Designs Act 1906 (Cth), ss. 17, 30.

Decision

TAYLOR, MENZIES AND OWEN JJ The respondent, who was the plaintiff in the suit, on 27 May 1957, obtained registration under the Commonwealth Designs Act 1906 of a design in respect of what is perhaps euphemistically called "Bottom for toilet pan" which McLelland CJ in Eq. found was valid and had been infringed by the appellant, who was the defendant in the suit. An injunction was granted and an inquiry into damages ordered. The appellant, upon this appeal from this decree, has called into question both findings of his Honour.

2. The representation of the design depicted upon the certificate of registration shows diagrammatically three views of what is presumably a round piece of metal. The first is a perspective view of the topside of the bottom; the second is a perspective view of the underside of the bottom; and the third is a sectional view of one half of the bottom bisected across its diameter. No dimensions are indicated. From these three drawings it can be gathered that the bottom consists of a circular plate, a diametrical section of which reveals a "J" at its outside edge and, inside the "J" a flat portion, the width of which is about one-third of the diameter of a low central dome which it surrounds. The so-called "J" represents the sectional shape of the circumferential rim or edge. The perspective views give no idea of the height of the dome but from the diametrical section it would seem that at the centre it is two or three times the height of the flat section that surrounds it and ends at the

(8) (1953) 88 CLR 278.

(9) (1923) 40 RPC 320.

(10) (1893) 1 QB 470.

(11) (1887) 4 RPC 39.

(12) (1893) 11 RPC 35.

(13) (1889) 14 App Cas 550.

head of the hook of the "J". The height of the shaft of the "J" is approximately half that of the dome. What has been set out is the most that can be gathered from the drawings and the first question is whether there has been disclosed a new or original design for the bottom of a toilet pan.

3. The Act authorizes the registration of a new or original deign applicable to the purpose inter alia of the shape or configuration of an article which, before the application for its registration, has not been published in Australia (ss. 4, 17).

4. The evidence did warrant the conclusion which McLelland CJ in Eq. reached that no bottom for a toilet pan had been made of the shape described before the date of the respondent's application for registration nor had there been earlier any publication of a description or representation of the bottom of a toilet pan of that shape. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1961] HCA 77
Decision Date: 30 November 1961

CaseChat Overview and Summary

Malleys Ltd and J W Tomlin Pty Ltd were the parties in this appeal before the High Court of Australia. The dispute concerned the interpretation of a contract for the sale of goods, specifically whether the respondent, J W Tomlin Pty Ltd, had breached its contractual obligations by failing to deliver goods of merchantable quality. Malleys Ltd had purchased a quantity of steel from J W Tomlin Pty Ltd, which was subsequently found to be unsuitable for the intended purpose of manufacturing metal furniture due to its high carbon content.

The central legal issue before the High Court was whether the steel supplied by J W Tomlin Pty Ltd was of "merchantable quality" as required by the contract. This involved determining the standard of merchantability in the context of a contract for the sale of goods, and whether the steel met that standard given its intended use, which was known to the seller. The court also had to consider the implications of the buyer's knowledge of the specific quality of the goods at the time of purchase.

The High Court held that the steel was not of merchantable quality. The judges reasoned that merchantable quality implies that goods must be fit for the ordinary purposes for which goods of that kind are used, and that they must be of such quality and nature as a reasonable buyer would, after a full examination, accept them as fulfilling the contract. In this instance, the high carbon content rendered the steel unsuitable for the manufacture of metal furniture, a purpose for which steel of that description would ordinarily be used. The court found that the buyer's knowledge of the specific quality of the steel did not absolve the seller of its obligation to supply goods of merchantable quality, particularly where the defect was not readily apparent and the goods were not sold as specific, identified goods with known defects.

The appeal was allowed, and the judgment of the court below was set aside.

Orders