Hearsay ... the Journal of the Bar Association of Queensland
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Cheesed Off Print E-mail

intro_cheesed_off.jpgBob Gotterson QC of Bracton Chambers recalls a landmark case in Queensland's legal history from a forensic as well as historical perspective.

Cheesed off?  Well, the global giant Kraft Corporation was just that with litigation that began in Queensland about 80 years ago.  It ended ignominiously for Kraft in London in 1931.

Nowadays, most delis offer a sizeable selection of cheese – local and imported.  Their refrigerated cabinets are decorated with tantalising displays of all types of cheeses – hard, soft, mild, piquant, indescribable and so on.  Exotic names and fancy packaging catch the eye of the browsing customer.

Time was when suburban delis were rarities.  You bought your cheese at the corner shop and it came off the shelf; not from the fridge.  I can remember, as a very young boy, believing that there were only two types of cheese and they were both cheddar.  They looked like they came from the factory; not from the dairy.  They were both sold in solid blocks wrapped in tin foil.  One was packed in a rectangular cardboard box, mainly mid blue in colour.  That was Kraft cheddar.  The other was sold in a similarly shaped cardboard box; but it was predominantly bright yellow and green.  On it was printed the palindrome “Maxam” in large black letters.

If Kraft had had its way, these little bright yellow and green boxes would have been banished from the shops forever.  It was a Mr McAnulty who provoked its corporate ire.  He was a cheese manufacturer in South Brisbane.  He manufactured cheddar cheese and sold it under the trade name “Maxam”.  This, Kraft contended, was an infringement of its patent for manufactured cheddar cheese.  It sued by a writ issued from the Supreme Court of Queensland on 2 June 1928.  Mr McAnulty had the temerity to challenge the validity of the patent for lack of novelty as well as denying infringement.

The case was tried over 13 days in June 1929 before Henchman J without a jury in the Supreme Court.  Macgregor and McGill appeared for Kraft; N W Macrossan for McAnulty.  The trial judge heard evidence from distinguished bio-chemists and was referred extensively to scientific literature.

In words that an advertiser would never use, the judge noted that “scientifically, Cheddar cheese is described as an emulsion of fat in a gel of casein and water”.  The seriously curious might like to read the judgment to find out how emulsifiers were used to “get the desired plastic homogeneous glossy mass”.

In a judgment given on 29 August 19291, the patent was found to have been infringed and an injunction was made.  The challenge to the validity of the patent was dismissed.

Undeterred, Mr McAnulty appealed to the High Court.  The appeal was heard by a full court of five justices over three days in December 1929.  Big guns from the south, Bonney KC and Menzies KC, were engaged respectively.  The court was split.  The majority (Isaacs, Rich and Dixon JJ) held the patent to be invalid:  it was misleading and ambiguous, they concluded.  The claims in the specification of complete sterilisation at 175ºF and of permanently keeping were untrue.  Those outcomes were not achieved by the specified process.  Ouch!  The appeal succeeded and the injunction was dissolved by a judgment given on 17 March 19302.

mouse_cheese.jpgOn 28 July 1930, Kraft was granted special leave to appeal to the Privy Council.  Even bigger guns from the London Bar appeared for this forensic outing which took place over four days in June 1931.  The appeal failed3.  The invalidity of the patent was affirmed, principally on the basis of uncertainties within it.  In a tribute to Henchman J, Lord Hanworth MR said that he had “delivered a lucid and closely-reasoned judgment which has proved of much service to the Board”4.

Mr McAnulty was free to make and market his Maxam cheese.  And he did so.  Maxam cheese was still being marketed decades later.  Competition from the tasty cheeses in plastic wrappers from the supermarkets probably killed it off in the end.

Apart from the historical, the litigation is interesting in several respects.  First, it does illustrate that significant and complex commercially-oriented litigation was conducted in Queensland at the time.  Secondly, note that none of the Queensland counsel who appeared were silk, notwithstanding the professional eminence of each of them.  The state of the Queensland economy at the time and well into the 1930s presented a real challenge to taking silk.  Thirdly, note also how much longer appeals ran in those times – three days in the High Court and four in the Privy Council.  No written outlines then, one suspects.  Fourthly, and perhaps strangely, the judgment of the High Court, although over 40 pages in length and dealing extensively with legal issues, is not reported in the Commonwealth Law Reports, it being noted only in the Australian Law Journal5.  Nor is the much shorter advice of the Privy Council reported in the Law Reports.  Thankfully, however, both are reported fully in the State Reports of Queensland and so have an easily accessible place in our state’s legal history.

In closing, I wish to mention that I learned of the Kraft litigation from a note of it in Helen Gregory’s recently published and commendable history of law reporting in Queensland6.

Compliments of the season to you all.

Bob Gotterson QC

Footnotes

  1. [1929] St R Qd 160
  2. [1932] St R Qd 139
  3. [1932] St R Qd 183, judgment given on 17 July 1931
  4. at 184
  5. (1930) 4 ALJ 35
  6. Capturing law and history: One hundred years of Queensland Law Reporting, published by the Supreme Court of Queensland Library, at p41.

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