AAA Embroidery and Screen Printing Pty Ltd v Vanny Dan
[2010] FCA 656
•23 June 2010
FEDERAL COURT OF AUSTRALIA
AAA Embroidery & Screen Printing Pty Ltd v Vanny Dan [2010] FCA 656
Citation: AAA Embroidery & Screen Printing Pty Ltd v Vanny Dan [2010] FCA 656 Parties: AAA EMBROIDERY & SCREEN PRINTING PTY LTD (ACN 092 619 862) v VANNY DAN, KERRI SOR and LISA HONG File number: NSD 197 of 2010 Judge: FOSTER J Date of judgment: 23 June 2010 Date of hearing: 23 June 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr RA Parsons Solicitor for the Applicant: Lyon Lawyers Solicitor for the Respondents: The Respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 197 of 2010
BETWEEN: AAA EMBROIDERY & SCREEN PRINTING PTY LTD (ACN 092 619 862)
ApplicantAND: VANNY DAN
First RespondentKERRI SOR
Second RespondentLISA HONG
Third Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
23 JUNE 2010
WHERE MADE:
SYDNEY
THE COURT:
1.GRANTS leave to the applicant to file in Court on behalf of the second respondent a Notice of Appearance.
2.GRANTS leave to the applicant to file in Court on behalf of the third respondent a Notice of Appearance.
3.GRANTS leave to the applicant to file in Court the affidavit of Alan Ng sworn on 3 June 2010.
4.GRANTS leave to the applicant to file in Court the affidavit of Alan Ng sworn on 22 June 2010.
5.GRANTS leave to the applicant to file in Court the affidavit of the second respondent, Kerri Sor, sworn on 10 June 2010.
6.GRANTS leave to the applicant to file in Court the affidavit of the third respondent, Lisa Hong, sworn on 10 June 2010.
7.ORDERS that the proceeding be dismissed.
8.GRANTS liberty to the first respondent to apply in respect of any of the orders made today in this proceeding.
THE COURT ORDERS BY CONSENT THAT:
9.Each of the respondents, within seven days of the date hereof, notify the applicant of all information known to him or her of the identity, places of business and other whereabouts of every person (including companies) who has supplied to any of the respondents garments bearing designs, images of which are included in Annexures B1–B7 inclusive to the Statement of Claim filed in this proceeding.
10.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 197 of 2010
BETWEEN: AAA EMBROIDERY & SCREEN PRINTING PTY LTD (ACN 092 619 862)
ApplicantAND: VANNY DAN
First RespondentKERRI SOR
Second RespondentLISA HONG
Third Respondent
JUDGE:
FOSTER J
DATE:
23 JUNE 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These proceedings were commenced on 2 March 2010 by the filing of an Application and a Statement of Claim. In those documents, the applicant alleged against the respondents that each of them had breached the applicant’s copyright in four original artistic works by selling garments to which copies of those artistic works had been applied. The applicant alleged entitlement to that copyright by reason of several assignments which are referred to in paragraphs 10, 11, 15, 16, 20 and 21 of the Statement of Claim.
The proceeding was first returned before me on 24 March 2010. On that occasion, there was no appearance either by or on behalf of any of the respondents. I was informed by Counsel for the applicant that service had not been effected by that date. For this reason, on that day, I made orders providing for the substituted service of the originating process.
The matter again came before me on 5 May 2010 when it was adjourned with no orders being made. On that occasion, once again, there was no appearance either by or on behalf of any of the respondents. I was informed by Counsel for the applicant that all of the respondents had been served and that settlement negotiations were taking place.
On 28 May 2010, the matter came before me for a third time. On this occasion, as before, there was no appearance either by or on behalf of any of the respondents. On this occasion, Counsel for the applicant informed me that the parties had reached a settlement of the proceeding on a final basis.
As at 28 May 2010, none of the respondents had filed an Appearance in the proceeding, nor had any of them filed a Defence.
On 28 May 2010, Counsel for the applicant informed me that each of the respondents and the applicant’s solicitor had signed Short Minutes of Order which were intended to dispose of the matter on a final basis. He sought orders in accordance with those Short Minutes of Order. I raised with Counsel certain difficulties presented by that course given that none of the respondents had filed an Appearance or attended at Court. The matter was then adjourned until this morning in order to enable the applicant to decide whether it would press for orders in the terms which, apparently, had been agreed amongst the parties, or whether it would press for the relief claimed in its Application in the absence of the respondents.
When the matter was called on this morning, the only appearance was by Counsel on behalf of the applicant. There was no appearance by any of the respondents. Counsel for the applicant handed up to me original Notices of Appearance apparently signed by each of the second and third respondents. I granted leave to the applicant to file those Notices of Appearance in Court on behalf of the second and third respondents. Counsel for the applicant also sought leave to file in Court several affidavits. I granted that leave. Counsel for the applicant then requested that orders be made in accordance with Short Minutes of Order which he submitted I should now be satisfied had been signed by the applicant’s solicitor and by each of the respondents. The original Short Minutes of Order were handed up to me and will become Exhibit A.
I am satisfied on the evidence tendered this morning that each of the second and third respondents has signed the Short Minutes of Order (Exhibit A). The solicitor for the applicant swore an affidavit on 3 June 2010 in which he deposed to several conversations with the second respondent. In those conversations, the second respondent told the solicitor for the applicant that she spoke for all three respondents, who ordinarily reside in Victoria. The evidence of the applicant’s solicitor demonstrates that the second respondent appreciates the significance of settling the proceeding upon the terms set out in the Short Minutes of Order.
In addition, Counsel for the applicant relied upon an affidavit sworn by the second respondent and an affidavit sworn by the third respondent. Those affidavits support the following propositions:
(a)The second respondent did have authority to speak for all three respondents in order to negotiate a settlement with the applicant;
(b)Each respondent signed the Short Minutes of Order (Exhibit A) and did so voluntarily and of his or her own free will; and
(c)Each respondent wished to negotiate an early settlement of the proceeding rather than participate in a drawn out and expensive piece of litigation.
In addition, I am satisfied that the Notices of Appearance which I have permitted to be filed in Court this morning are genuine.
I am therefore satisfied that the second and third respondents have consented to the orders set out in the Short Minutes of Order (Exhibit A).
As far as the first respondent is concerned, no Notice of Appearance has yet been filed, nor has he attended at Court on any of the occasions when the matter has been before me. Furthermore, no affidavit from that respondent dealing with the Short Minutes of Order has been obtained. However, there is material before me which indicates that the reason that these things have not been done by the first respondent is that he is presently overseas and has not been in a position to attend to the matter in the same fashion as the second and third respondents.
I am, however, satisfied that each of the three respondents was involved cooperatively in the conduct about which the applicant complains and that it is most likely that the second and third respondents have kept the first respondent well informed of developments in the proceeding. I infer that the second respondent does speak for all three respondents. As I have said at [9] above, I am also satisfied that the first respondent has signed the Short Minutes of Order and that he has consented to the terms of those Minutes of his own free will.
For these reasons, I propose to make Order 1 set out in the Short Minutes of Order (Exhibit A). I will also order that the proceeding be dismissed. I note that the parties have agreed that there be no orders as to costs. In addition, I grant liberty to the first respondent to apply in respect of any of the orders which I have made this morning.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 24 June 2010
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