A.C.M. Services Pty Ltd ACN 055 655 082 v Linmac Cranes

REASONS FOR JUDGMENT 1 These proceedings arise out of the market for the supply of mobile cranes in Australia. A popular type of mobile crane is that known as a "pick and carry" crane. These are designed to operate without "outriggers". They present the advantage of permitting the ready movement of a crane from a lifting task at one site to one at another site without the need on each occasion to deploy and then retract stabilising outriggers. 2 It is matter of history that there were once two principal suppliers of "pick and carry" mobile cranes in the Australian market, a company known as Franna and another, Linmac Pty Ltd ("Linmac"). 3 Franna still carries on business in the Australian market. In June 1996, Linmac went into receivership. The demand for "pick and carry" mobile cranes has continued unabated. That demand has manifested itself in a waiting list of some two years for mobile cranes produced by Franna and in a second hand market for Linmac cranes. 4 The First Applicant, ACM Services Pty Ltd ("ACM") initially conducted a crane hire business in Rockhampton and in Brisbane. In that business it used cranes manufactured by Linmac. On occasion, when these cranes needed repair, it was supplied by Linmac under licence with copies of relevant plans for the limited purpose of facilitating the undertaking of those repairs. 5 More recently, and its seems, as a result of a perception of a gap in the Australian market for the supply of "pick and carry" mobile cranes, ACM has come to acquire from a United States company, Ground Force Manufacturing LLC ("Ground Force") a used Linmac crane, parts for Linmac cranes and what it now asserts to be copyrighted materials and allegedly confidential information said to have been originally owned by Linmac and vested in Ground Force in a way which permitted a transfer of ownership to ACM. 6 In turn, ACM has entered into negotiations with the Second Applicant ("Dellgale") to sell to Dellgale, materially, the manufacturing drawings for certain types of Linmac cranes. At the time of these negotiations Dellgale was selling cranes made by a Chinese manufacturer, Zoomlion. In the course of these negotiations it was put to one of ACM's officers, Mr Austin, that another had been dealing with Zoomlion in China with a set of Linmac manufacturing drawings and had made a request that Zoomlion manufacture mobile cranes in accordance with those drawings. 7 The present proceedings are a manifestation of a suspicion then formed on the part of ACM that what it conceived to be its copyright in the Linmac drawings and its confidential information was being used without its authority by the Respondents. 8 Three causes of action are pleaded by the Applicants: (a) infringement of copyright; (b) breach of confidence; and (c) misleading or deceptive conduct contrary to ss 52 and 53 of the Trade Practices Act 1974 (Cth). 9 Only the first two of these causes of action are relied upon by the Applicants in a claim for interlocutory injunctive relief against the Respondents. The Respondents have sought to meet that claim for interlocutory injunctive relief not by the giving of particular undertakings but rather by submitting that, having regard to the principles which attend the granting of interlocutory injunctive relief, no claim for such relief is made out. Those principles are not in doubt. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-82, [65], Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed in this regard (at 68, [19]) stated: "The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: 'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to a relief … The second inquiry is … whether the inconvenience or injury which is the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.' By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial." 10 Whether or not to grant an interlocutory injunction requires the exercise of a discretion informed by the application of these principles to the circumstances of the case as revealed by the material before the court at the time of the application.