N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd

N and E Bowder Pty Ltd, Belmark Rural Pty Ltd, and Hay Queensland Pty Ltd filed an application for leave to appeal against a judgment of Dowsett J of the Federal Court of Australia. The respondents, Australian Keg Company Pty Ltd, hold a patent for a field bin used for grain storage. The applicants initially filed proceedings against the respondents for making unjustifiable threats under section 128(1) of the Patents Act 1990 (Cth). The respondents cross-claimed for damages for patent infringement. On 24 December 2013, Dowsett J published reasons for judgment, holding that the applicants had infringed the patent but did not make any orders at that stage. The applicants filed their application for leave to appeal without any orders being made, which was premature as reasons for judgment alone do not constitute a “judgment” for the purposes of section 24 of the Federal Court of Australia Act 1976 (Cth).

The primary judge subsequently made orders on 14 March 2014, declaring that each of the applicants had infringed the patent, while damages have yet to be determined. This led to a discussion about whether the declaration made in respect of a separate issue, which did not dispose of the whole proceeding, was interlocutory or final. The court considered a line of authority that held such a judgment to be interlocutory, citing several cases. However, there were also decisions supporting the view that such a declaration was a final judgment, which was not directly decided in this case. The court concluded that it was bound by the earlier Full Court decisions, finding the judgment to be interlocutory and leave to appeal necessary.

The court granted the applicants leave to appeal, noting that there was at least an arguable case in the proposed appeal concerning the primary judge’s determination of the patent infringement. The court observed that substantial injustice would result from a refusal of leave, as the judgment determined the parties' substantive rights and was likely to have economic consequences for the applicants. The applicants were ordered to file and serve a notice of appeal by 4 April 2014. Costs were reserved.