It is the duty of a party asking for an interlocutory injunction ex parte to MELBOURNE, bring before the Court all facts material to the determination of his right to that injunction, and omission to bring any material facts before the Court is a ground for dissolving an injunction so obtained.

MOTION to dissolve an interlocutory injunction.

The facts are sufficiently set out in the judgment hereunder. J. R. Macfarlan, for the defendant, in support of the motion. Mann, for the plaintiffs, to oppose. [Counsel referred to Boyce v. Gill 1; Wimbledon Local Board V. Croydon Rural Sanitary Authority 2.]

Cur. adv. vult.

ISAACS J. read the following judgment -This is a motion to dissolve an interlocutory injunction obtained by the plaintiffs from Barton J. on 16th September 1912 at Sydney, restraining the defendant from selling or offering for sale Edison phono- graphs, records and blanks at prices less than those licensed by the plaintiffs without their consent, and from including in his

164 L.T., 824. 232 Ch. D., 421.

15 CLR 680

offer for sale of Edison phonographs any horns or gramophones

or other articles not listed to go with an Edison phonograph as a regular outfit, and from including in a sale or offer of Edison records or blanks other articles without giving the price of such BULLOCK. phonograph records or blanks. The injunction was granted until

the hearing of the suit or further order, and liberty was given to defendant to move to dissolve it. Notice by telegram was directed, the defendant trading in Adelaide.

The action was commenced on the day the injunction was obtained.

The only case presented to the learned Justice was that the plaintiffs were the owners of certain Commonwealth patents, and wholesale vendors of the patented articles; that the defendant, a retail vendor of such articles, had in April 1909 entered into an agreement with the plaintiffs by which, in clause 3, he had in effect undertaken not to sell under list price directly or indirectly, and not to include other goods except upon certain terms inter- preted by the plaintiffs to be those mentioned in the order for injunction; that the defendant, notwithstanding, was proceeding and intended to sell his entire phonograph stock in violation of his agreement of April 1909, and that irreparable damage would result unless the intended sale were prevented,

The defendant's present application to dissolve the injunction is rested on two grounds first, non-disclosure to Barton J. of material facts; and next, that no breach was committed or intended.

As to the first ground, it now appears, on uncontradicted evi- dence, that in February of this year the defendant, finding his cycle and motor trade increasing, sought and obtained from the plaintiffs on the 6th of that month permission to dispose of his entire phonograph stock of Edison goods. Conditions were attached, namely, that,…

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.

Continue reading Thomas A Edison Ltd v Bullock

Details

AGLC: Thomas A Edison Ltd v Bullock [1912] HCA 72
Case: [1912] HCA 72
Decision Date: 31 October 1912

CaseChat Overview and Summary

In *Thomas A Edison Ltd v Bullock*, the plaintiffs, Thomas A Edison Ltd, sought an interlocutory injunction from Barton J. to restrain the defendant, Bullock, from selling Edison phonographs, records, and blanks at prices below the licensed rates and from including unauthorised items in sales. The injunction was granted ex parte, with liberty for the defendant to move to dissolve it. The defendant subsequently moved to dissolve the injunction, arguing both a failure by the plaintiffs to disclose material facts to the court and that no breach of agreement had occurred or was intended.

The legal issues before Isaacs J. were whether the injunction had been improperly obtained due to a lack of full disclosure by the plaintiffs, and, if not, whether the defendant had breached or intended to breach his contractual obligations with the plaintiffs regarding the sale of their products. The court was required to consider the duty of a party seeking an ex parte injunction to present all material facts to the court, and the consequences of failing to do so.

Isaacs J. held that the plaintiffs had failed in their duty of full disclosure when obtaining the ex parte injunction. He found that crucial information regarding the defendant's prior request and the plaintiffs' conditional permission to dispose of his entire phonograph stock, granted in February of that year, had not been presented to Barton J. This omission meant that the learned judge had not been afforded the opportunity to consider the true circumstances and exercise his discretion based on all relevant facts. The court affirmed the principle that a party seeking an ex parte injunction bears a serious responsibility to disclose all material facts, even those that might be detrimental to their application, citing established authorities such as *Dalglish v. Jarvie*.

Although the injunction was dissolved due to the improper ex parte application, the parties agreed to treat the motion as the trial of the action. Upon considering the merits, Isaacs J. found that the defendant had not acted, threatened, or intended to act in violation of the plaintiffs' rights, particularly in light of undertakings given by the defendant's counsel and assurances from the plaintiffs. Consequently, the action was dismissed. The court ordered judgment to be entered for the defendant without costs, considering that while the defendant could have been more explicit, the plaintiffs had been precipitate in their actions.

Orders