Melbourne, J.S. v Terry Fluid Controls P/L

[1993] FCA 435

435 19

JUDGMENT No. .......,a,,,,,,,.,~, ,.. ?>

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) NO. VG405 of 1989
GENERAL DIVISION	1

BETWEEN:  JOHN STANLEY MELBOURNE

Applicant

AND:  TERRY FLUID CONTROLS
PTY. LTD.

Respondent

C O W :  Jenkinson J.

PLACE: Melbourne

m:	30 June, 1993	0 2 JuL 1993
FEDERAL COURT OF

AUSTRALIA PRINCIPAL REOISTRY

REASONS FOR JUDGMENT

On 7 May 1993 reasons were published for the conclusions that the cross-clam for revocation of Australian Patent No. 584738 should succeed and that the patentee's suit for infringement of the patent should fail. On 21 June 1993 submissions were advanced by each party concerning the appropriate order as to costs.

claim for revocation, because there had been proved one	anticipation of his invention, had been successful on all the
other issues raised for determination by the parties. But the controversy between the parties was insusceptible of curial resolution without the protracted examination which was provided by the parties at trial, by reason of two circumstances. For one of those circumstances neither party has any responsibility. First, the controversy arose out of the contemporaneous development by several persons of different, but similar, solutions of problems concerning the electrical isolation of a crust breaking implement from the end assembly of the air cylinder by which the implement was actuated, in response to the introduction of point feeder technology into this country and to the enhanced perception of those problems which point feeder technology excited. That circumstance virtually imposed on the parties the questions of novelty and obviousness which they assiduously explored in the proceeding and the cross-claim. Second, the complete specification of the patent in suit was expressed in language which failed, in my opinion, adequately to comprehend the differences between the several solutions of those problems.
of that circumstance arose the issue of inutility, and a For that circumstance the applicant bears responsibility. Out
substantial part of the issue of anticipation by manufacture of cylinders in accordance with the 602 drawings.
Neither party in my opinion wasted time on a hopeless contention. Nor in my opinion did either party unreasonably prolong the trial in any other way.
The foregoing considerations suggest that justice between the parties will best be served by ordering that the applicant pay four fifths of the respondent's costs of the proceeding on the originating application and of the cross- claim.

These reasons are to be read in conjunction with the reasons published on 7 May 1993.

Mr. Bevan-John of counsel for the applicant submitted that the applicant, although unsuccessful in his proceeding for infringement and in his defence of the cross-

I certify that this and the 2
preceding pages are a true copy of
the Reasons for Judgment of the

Honourable Mr. Justice Jenkinson.

1-

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Dated: 30 June, 1993

Counsel for the Applicant	Mr. M.T. Bevan-John
Counsel for the Respondent	Mr. G.S. Clarke
Solicitors for the Applicant	Galbally & O'Bryan
Solicitors for the Respondent	Garland Hawthorn Brahe

Date of Hearing 7 May, 1993