Worldwide Resources Ltd v Global Medical Industries Pty Ltd

[1997] FCA 946

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 433 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

WORLDWIDE RESOURCES LIMITED
First Applicant

AOL INTERNATIONAL PTY LIMITED
Second Applicant

PARAMOUNT CAPITAL EXCHANGE CORPORATION
Third Applicant

  AND:  

GLOBAL MEDICAL INDUSTRIES PTY LIMITED
First Respondent

ANTHONY VASYLI
Second Respondent

KERRIE VASYLI
Third Respondent

JUDGES:	LOCKHART, BURCHETT AND BRANSON JJ
PLACE:	SYDNEY
DATED:	7 AUGUST 1997

REASONS FOR JUDGMENT

THE COURT

The applicants seek leave to appeal from the refusal of Young J in the Supreme Court of New South Wales to grant an interlocutory injunction to restrain alleged infringements of registered designs.  The argument was conducted on the basis that, if the Court were minded to grant leave, it would also decide the appeal. 

The judgment challenged is extremely brief.  It was delivered immediately after the reading of the applicants’ affidavits, without the respondent being called upon to elect whether to go into evidence, and without any invitation to counsel for the applicants to address.

As an appellate Court, we should not fail to be conscious of our advantages, nor should we overlook the difficulties of a busy duty judge with possibly a long list of motions.  But we would not be performing our task if we did not point out that the efficient disposal of cases confers no benefit unless it is also a just disposal of them. 

In this case, had the learned Judge called upon counsel to present the argument which we heard, he could not have dismissed the application upon the ground upon which he did dismiss it.  For the basis of the judgment is in a single sentence:

“I would not be prepared to grant an interlocutory injunction, the principal reasons being those advanced by Mr Douglas QC earlier -

his Honour was referring to some opening remarks of counsel for the respondents - 

that there has been delay in coming to the Court and that there is confusion with the facts.”

These statements are simply not possibly sufficient to justify the decision.  The confusion with the facts did not extend to the core case of the applicants, showing a serious question to be tried and grounds for finding the balance of convenience in their favour.  The delay was neither lengthy nor unexplained.  At most, in a case involving an overseas company whose director’s affidavit was sworn in the West Indies, it was some two and a half months. 

But had the ordinary procedure been followed,  it is accepted that the respondents would have read an affidavit directed to weakening the applicants’ case on the designs by raising a question whether their registrations were invalid.  That would have been a matter requiring examination before any decision could have been reached.

In these circumstances leave to appeal should be granted; the appeal should be allowed; and the orders made below should be set aside.  But, rather than grant any relief in a case where the respondents’ evidence has not been tested in the Court below, we should remit the matter for re-hearing by a judge of the Supreme Court.

The orders of the Court are as follows:

(1)That leave be granted to the applicants to appeal from the interlocutory judgment of the Supreme Court of New South Wales, Young J, given on 20 May 1997.

(2)That the appeal be allowed.

(3)That the orders of the Supreme Court be set aside.

(4)That the application for interlocutory injunctive relief be remitted to the Supreme Court for re-hearing.

That the respondents pay the costs of the applicants of the proceedings before this Court.

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:            

Counsel for the Applicants:	D K Catterns QC and S Y Reuben
Solicitors for the Applicants:	Cassidy Gibson Howlin
Counsel for the Respondents:	F M Douglas QC and B Morris
Solicitors for the Respondents:	Benjamin and Khoury
Date of Hearing:	7 August 1997