The second inquiry in the present application involves a consideration of whether the

inconvenience or injury that Apple would be likely to suffer if an injunction were refused
outweighs or is outweighed by the inconvenience or injury which Samsung would be
likely to suffer if the injunction were granted.
As Jessup J observed in Interpharma at [16], as the decision to grant interlocutory relief
is discretionary, the Court will, in considering the balance of convenience, generally take
into account every circumstance that has the rational capacity to assist in answering the
question whether it would be in the interests of justice to do so. This includes the
strength of the prima facie case, taking into account the issues of infringement and
invalidity.
For the purposes of consideration of the balance of convenience, the parties agree that:
at present, Apple has the Australian tablet market virtually to itself;
the Australian Galaxy Tab 10.1 would be a
formidable player in the Australian tablet
market;

at least initially, the aim of the launch of the

Australian Galaxy Tab 10.1 is to establish a
market in the Android platform; and

at least initially, the growth of the market in

the Android platform would largely be at
the expense of Apple.

As a preliminary matter, I wish to make some

observations on the fact that both parties, in their
submissions on the balance of convenience, made
repeated criticisms of the other for making
assertions not supported by any evidence. In
circumstances where it may not have been possible
to support such assertions by evidence readily at
the parties disposal, especially given the rapidly
changing nature of the tablet market, and
considering the exigencies of an interlocutory

application and the substantial amount of evidence

that was placed before the Court, my view is that,
where appropriate, a failure to adduce admissible
evidence as to a factor that has a basis in logic or
generally accepted market dynamics is not
necessarily to be held against the party accused of
lacking an evidentiary basis for that assertion. The
same does not apply to a fact generally in issue or
to the assessment of whether there is a prima facie
case, or to matters notified to the parties as being
matters that I could not accept as assertion made
by counsel unsupported by evidence.
1

It is convenient to divide the balance of

convenience arguments put forward by the parties
as follows:

the significance of the detriment;

whether damages are an adequate remedy;

whether, as a result of the short life cycle of

tablet devices, injunctive relief is equivalent
to final relief;

the preservation of the status quo in the

Australian tablet market;

whether Samsung proceeded with its eyes

wide open;

whether there was relevant delay by Apple

and, if so, the consequences of such delay;
and

the strength of Apples prima facie case.

Even though I reach conclusions based on each

issue, it goes without saying that some of these
issues are more important to my assessment of the
balance of convenience than others. That is, I do
not attribute equal weight to each factor.

Before turning to these issues, it is appropriate to

make some general comments on the matter of an
early final hearing of some or all of the issues in
these proceedings and its relevance to the
assessment of the balance of convenience. It is to
be recalled that the interlocutory application is
limited, based on the asserted infringement of
three claims of two patents, one of which is said to
be invalid for want of novelty arising from
anticipation by either one of two prior
publications. There has already been evidence filed
and submissions made. Both parties reserve the
right to file additional evidence and make
additional submissions on these issues.

On 26 September 2011, the first day of the

interlocutory hearing, the Court raised the
possibility of an early final hearing in November
2011 in relation to these limited aspects of Apples
patent infringement case and Samsungs invalidity
case, to be without prejudice to each partys right to
pursue remaining aspects of its case at a later time
and on the understanding that judgment would be
delivered as soon as possible, preferably before the
end of 2011. This was suggested on the bases that:

the balance of convenience issues on

both sides were persuasive;

the balance of convenience issues were

premised on the existence of substantial
delays, whereas an early final hearing would
provide the advantage of reaching an
outcome expeditiously;

the determination of the matter is of

considerable urgency for both sides; and

an earlier final hearing would allow for an

earlier assessment of the parties rights and
could thereby reduce the complexity of and
quantum of damage.

Apple indicated that it was prepared to move for a

final hearing based upon the Interlocutory Patents
(which, at that point, included an additional patent
subsequently the subject of one of the
Undertakings). Samsung indicated that it was not
prepared to move for a final hearing on this basis.

On 27 September 2011, Samsung filed a brief

submission outlining the reasons for its
unwillingness to proceed to an early final hearing.
This was supplemented by further submissions
from counsel on 29 September 2011, the second
day of the interlocutory hearing. In summary,
Samsungs reasons were that:

An early final hearing would further

delay entry into the market without judicial
determination of even a prima facie case. In
this regard, Samsung pointed to the
evidence of Mr McGee, the Vice President of
the Telecommunications Division of
Samsung Electronics Australia Pty Limited,
which was to the effect that further harm
would be suffered by the further delay of the
launch of the Australian Galaxy Tab 10.1,
particularly in relation to its availability as
part of the Christmas 2011 campaigns of
various retailers and operators (the
Christmas Campaigns).

As Samsung had prepared its case on a

confined basis to meet the exigencies of an
interlocutory application it would, on a final
basis, wish to adduce further evidence on
lack of inventive step and conduct further
prior art searches for the purposes of its
cross-claim for revocation of the
Interlocutory Patents. This would take a
substantial amount of time.

Samsung would be deprived of its choice of

counsel.

The Court should not permit Apple to split

its claims for final relief by raising separate
questions.

On 30 September 2011, the third day of hearing,

there was further discussion between the Court and
the parties on the issue of an early final hearing. In
particular, these discussions concerned Samsungs
reluctance to commit to an early final hearing.
That afternoon, Samsung handed to both the Court
and Apple proposed short minutes of order to the
effect that:

issues of the alleged infringement of

the Heuristics Patent, the alleged
infringement of the Touch Screen Patent
and the alleged invalidity of the Touch
Screen Patent be determined at an early
hearing separately and before other issues
in the proceeding;

Apples application for interlocutory relief

be dismissed; and

Samsung be released from its undertaking

not to launch the Australian Galaxy Tab
10.1;