Clemco International Sales Company v. Bolrette Pty Ltd & Ors [1985] FCA 286

Clemco International Sales Company v. Bolrette Pty Ltd & Ors [1985] FCA 286

The applicant failed to establish a sufficiently clear or strong case for the granting of an injunction to restrain the first respondent from proceeding with interlocutory relief in the Supreme Court of Western Australia. The balance of convenience did not favour granting the injunction, particularly in the absence of a clear case of breach of undertakings or irreparable harm to the applicant. There was no identity of issues or parties, and the Federal Court could not determine all aspects of the dispute. Thus, the interim injunction was dissolved and the applicant's motion dismissed.

Parties
Applicant: Clemco International Sales Company; First Respondent: Bolrette Pty. Limited trading as Autoblast; Second Respondent: Leslie Roy Moss; Third Respondent: Kelvin E. Lord
Jurisdiction
Australia
Judgment Date
03 July 1985
Procedural Posture
Motion for Interlocutory Injunction / Decision on Motion for Interlocutory Relief
Outcome
Application dismissed
Legal Topics
Injunctions, Trade Practices Act S 52 Misleading or Deceptive Conduct, Patents Act S 121 Unjustified Threats of Infringement Proceedings, Jurisdictional Disputes, Interlocutory Relief, Forum Non Conveniens
Intellectual Property Law Competition and Consumer Law Civil Procedure Injunctions Trade Practices Act S 52 Misleading or Deceptive Conduct Patents Act S 121 Unjustified Threats of Infringement Proceedings Jurisdictional Disputes Interlocutory Relief +1 more

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Parties

Clemco International Sales Company

Applicant

Bolrette Pty. Limited trading as Autoblast

First Respondent

Leslie Roy Moss

Second Respondent

Kelvin E. Lord

Third Respondent

Procedural Posture

Motion for Interlocutory Injunction / Decision on Motion for Interlocutory Relief

Legal Issues

  1. 1 Whether the Federal Court should restrain the first respondent from proceeding with interlocutory relief in the Supreme Court of Western Australia while related proceedings are on foot in the Federal Court.
  2. 2 Whether the institution of infringement proceedings in the Supreme Court of Western Australia constituted a breach of undertakings previously given to the Federal Court.

Ratio Decidendi

The applicant failed to establish a sufficiently clear or strong case for the granting of an injunction to restrain the first respondent from proceeding with interlocutory relief in the Supreme Court of Western Australia. The balance of convenience did not favour granting the injunction, particularly in the absence of a clear case of breach of undertakings or irreparable harm to the applicant. There was no identity of issues or parties, and the Federal Court could not determine all aspects of the dispute. Thus, the interim injunction was dissolved and the applicant's motion dismissed.

Court Disposition

Application dismissed

Orders

  • The injunction granted on 27 June 1985 restraining the first respondent from proceeding upon the chamber summons in Supreme Court of Western Australia proceedings No.1680 of 1985 is dissolved.
  • The applicant's motion filed 27 June 1985 is dismissed.