Unilever Australia Ltd v Tidy Tea Ltd

[1995] FCA 809

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY)    )    No.   NG 387 of 1995
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:UNILEVER AUSTRALIA LIMITED

Applicant

AND:TIDY TEA LIMITED

First Respondent

AND:LYONS TETLEY LIMITED

Second Respondent

COURT:  LOCKHART, SHEPPARD and BEAZLEY
DATE:   19 SEPTEMBER, 1995

REASONS FOR JUDGMENT
THE COURT
     This is a motion for leave to appeal from the judgment of a judge of the Court (Burchett J.) on 11 August 1995, granting interlocutory injunctions.  Those injunctions included orders restraining the advertising, making, and sale of certain tea bags by the applicant for leave, Unilever Australia Limited, to which for convenience we shall refer as Unilever.  The moving parties for the interlocutory injunctions were Tidy Tea Limited and Lions Tetley Limited.  The Court has heard full argument on the appeal in the course of hearing the motion for leave.

Burchett J. found that there was a serious question to be tried within the meaning of the well established authorities, and he proceeded in the concluding passages of his reasons for judgment to deal with the question of the balance of convenience.  Counsel for Unilever made various attacks on the findings of his Honour in two broad categories.  Primarily, it was said that an error of principle on the part of his Honour was evident in his specific findings; and secondly, it was said that there was a failure to make adequate findings, in particular with respect to the loss or damage that might be sustained by Unilever in the event of interlocutory relief being granted, as it was.

It was argued by counsel for Unilever that his Honour had not considered the proper test in matters of this kind with respect to damage; and in particular, that his Honour had failed to treat the proof of inadequacy of damages as a remedy as a governing principle.  It was also argued on behalf of Unilever that his Honour failed to give adequate weight to the fact that neither Tidy Tea nor Lions Tetley trades in Australia and, further, that there was undue delay by Tidy Tea and Lions Tetley in bringing the proceeding for interlocutory relief.

Finally, it was argued that his Honour erred in a finding on page 23 of his Honour's reasons, where he said:

However, it was accepted that the respondent [Unilever] went into the matter with its eyes open, well aware of the applicants' claim to be entitled to the grant of a patent, and it was clear from the outset that the sole purpose of their obtaining the petty patent was "in order for the applicant to commence proceedings against the respondent for infringement".'

The petty patent is one concerned with the elimination of drips which ordinarily attend tea bags as they are removed from cups or other containers. 

It is unnecessary to deal any further with the facts.  They are fully canvassed in his Honour's reasons for judgment, and we have heard argument upon them. 

It has not been demonstrated that his Honour committed any error of principle in his reasons for judgment, either by making specific findings that do not accord with established principle, or by failing to make other findings that he should have made.

We are not satisfied that in all the circumstances the judgment of Burchett J is attended by sufficient doubt to warrant it being considered by the Full Court.  Accordingly the motion for leave is dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Court.

Associate
         Dated:  19 September 1995 

Counsel for the Applicant    :    Mr D K Catterns QC

Ms S J Goddard

Solicitors for the Applicant :    Mallesons Stephen Jaques

Counsel for the Respondents  :    Mrs A C Bennett SC

Ms K J Howard

Solicitors for the Respondents    :    Sprusons

Date of Hearing             :    19 September 1995

Date of Judgment            :    19 September 1995