Buzacott and Company Limited v Cyclone Pty Ltd [1920] HCA 12

B.L. (HIGH COURT OF AUSTRALIA.) BUZACOTT & COMPANY LIMITED ' . APPELLANT; DEFENDANT, AND CYCLONE PROPRIETARY LIMITED . . RESPONDENT. Prarntirr,

H.C. or A, Practice - High Court - Appeal from Justice of High Court - Admission of further

1920. evidence - New trial - Terms - Rules of the High Court 1911, Part II., Sec. I., eo, r. 10.

Ta On an appeal to the Full Court of the High Court from the judgment of «

H Justice of that Court the appellant applied for leave to call further evidence.

Knox 0.3, The Court, being of opinion that further evidence should be taken, set aside

peat nineey. the judgment and ordered a new trial on the terms that the appellant should

pay the costs of the first trial and of the appeal.

The Cyclone Proprietary Ltd., which was the owner of two designs registered under the Designs Act 1906, viz., No. 1053 regis- tered in respect of gates, &c., for a period of five years from 30th August 1912, which period was subsequently extended for a further five years, and No. 2697 registered in respect of gates for a period of five years from 13th June 1918, brought an action in the High Court against Buzacott & Co. Ltd. wherein the plaintiff alleged that the defendant without the licence or authority of the plaintiff had sold and offered and kept for sale gates to which the plaintifi's registered designs or fraudulent or obvious imitations thereof had been applied in infringement of the plaintiff's copyright in such designs. The plaintiff claimed an injunction, damages or an account of profits, and delivery up of infringing articles. One of the defences taken was that neither of the registered designs was new or original, but that each of them had been published and in use in connection with (inter alia) gates which were sold to the general public.

The action was heard by Isaacs J., who gave judgment for the plaintiff for an injunction, having found that there had been infringe- ment of both of the registered designs and that the defendant had not proved prior publication of either of those designs.

From that decision the defendant appealed to the Full Court, and, on the appeal coming on for hearing, the appellant applied for leave to call further evidence as to prior publication.

Latham, for the appellant. The Court has jurisdiction under rule 10 of Sec. I. of Part I. of the High Court Rules to admit further evidence on an appeal. This is a proper case for admitti>¢ further evidence (In re Neath Harbour Smelting and Rolling Works (1) ).

[Rion J. referred to Nash v. Rochford Rural Council (2) ).|

Weigall K.C. (with him Owen Dizon), for the respondent.

The judgment of the Court, which was delivered by Knox C.J., was as follows : - We wish to make it clear that we do not deal in any

way with any ruling given by our brother /saacs at the trial, nor do we in any way, except formally, depart from any decision of his, I say " formally," because it is necessary to vacate his judgment in order that there may be a new trial. In this case we think it is eminently desirable that the new trial should take place before our brother Zsaacs, the real object of the new trial being that he may inform his mind by fresh evidence on a point raised before him at the first trial and which he then had to decide on less evidence than will be available on the new trial. We express no opinion - whatever as to the effect of the new evidence; that is entirely a

Judgment set aside. New trial granted. Order by consent that the evidence on the former trial be used at the new trial. Defendant to pay the costs of the first trial and of this appeal.

Solicitors for the appellant, Sly d& Russell, Sydney, by Hedderwick, Fookes & Alston. Solicitors for the respondent, Weigall & Crowther.