Case: Sebel Furniture Ltd v Acoustic &amp; Felts Pty Ltd [2009] FCA 6 ; (2009) 80 IPR 244
Outcome: applied
that assumption, I will now consider the questions of whether damages would be an adequate remedy, the balance of convenience and the balance of justice. In Sebel Furniture Ltd v Acoustic &amp; Felts Pty Ltd [2009] FCA 6 ; (2009) 80 IPR 244 at [25] [31] (pp 250 251), I explained these concepts as follows: The remaining questions identified by Mason ACJ in Castlemaine require Sebel to show that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favours the granting of an injunction. The first of these matters involves an assessment by the court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted: see the discussion of this aspect in ICF Spry, The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages, 7th ed, Lawbook, Pyrmont, 2007, pp 383 9; 397 9 and 457 62. The second of these matters requires the court to exercise a discretion. In exercising that discretion, the court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the claimant if no injunction is granted. In determining this question, the court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the claimant for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted. In order to address the irreparable injury question, the balance of convenience and the balance of justice in the present case, it is necessary to consider the nature and strength of Sebel's case and the circumstances in which the respondent decided to compete with Sebel by importing the Titan chair into Australia and by promoting and selling that chair in this country. It is also necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ; 153 ALR 643 ; 27 ACSR 535 ; [1998] HCA 30 at [65] and [66], Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, 1997, pp 402 3, which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. I propose to apply those principles here. The applicants first learned of the existence and trading activities of Anying Auburn in December 2007. They made their initial demand for a cessation of those activities by email dated 22 January 2008. A more formal demand was sent on 23 January 2008. These demands were answered in detail by the respondents on 27 January 2008 and again on 17 February 2008. The respondents refused to give the undertakings sought by the applicants and asserted their rights to use the Anying mark.