Chanel Limited v Design Elegance Pty Ltd (ACN 083 361 755)
[2005] FCA 1663
•9 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
Chanel Limited v Design Elegance Pty Ltd (ACN 083 361 755) [2005] FCA 1663
Federal Court Rules O 35A r 2
CHANEL LIMITED AND CHANEL AUSTRALIA PTY LIMITED (ACN 000 012 153) v DESIGN ELEGANCE PTY LTD (ACN 083 361 755) AND BARBARA MASKIELL
NSD 1004 OF 2005GYLES J
9 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1004 OF 2005
BETWEEN:
CHANEL LIMITED
FIRST APPLICANTCHANEL AUSTRALIA PTY LIMITED (ACN 000 012 153)
SECOND APPLICANTAND:
DESIGN ELEGANCE PTY LTD (ACN 083 361 755)
FIRST RESPONDENTBARBARA MASKIELL
SECOND RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
9 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The decision be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1004 OF 2005
BETWEEN:
CHANEL LIMITED
FIRST APPLICANTCHANEL AUSTRALIA PTY LIMITED (ACN 000 012 153)
SECOND APPLICANTAND:
DESIGN ELEGANCE PTY LTD (ACN 083 361 755)
FIRST RESPONDENTBARBARA MASKIELL
SECOND RESPONDENT
JUDGE:
GYLES J
DATE:
9 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is a notice of motion seeking a judgment effectively based upon default of the respondents in filing an appearance.
The matter was before the Court on 21 September 2005 on which occasion I adjourned the motion, and the proceedings in general, until today with some reluctance because of the position of the individual respondent being located in Queensland. In the meantime, further service was effected and the respondents were advised of the practical steps they could take to file an appearance in the Queensland Registry and to make arrangements for appearance by video link. There has been no appearance at any stage by either respondent.
On this occasion, as on the last occasion, an informal communication has been lodged with the Court apparently from the individual respondent although, of course, it does not prove itself. Those documents have been marked for identification and should be retained with the papers.
In any event, I am satisfied that the evidence establishes proper service on the respondents of the original application, statement of claim, this motion and the supporting affidavits. It is thus an appropriate case for the exercise of power in O 35A of the Federal Court Rules to enter judgment. The informal communication does not provide any proper ground for refraining from taking that course.
I should, however, mention that the notice of motion as amended did not comply with the order of the Court made on the last occasion because the return time was 9.30 am this morning, not 2.15 pm this afternoon. I have been rather troubled by that. I will, however, regard that as regular for several reasons. First, there was the informal communication from the individual respondent showing she was well aware of today's hearing. Secondly, there has been no appearance filed and that is the operative default. Thirdly, I was sitting at 9.30 am this morning and, although the matter was not called, if any respondent had been present there was the opportunity to make herself known.
However, I do need to look more closely at the relief sought in the notice of motion and the application to ensure that the orders as sought should be made and for that purpose alone I will reserve my decision. I will also give consideration as to whether any adjustment to the order for costs should be made in view of the procedural history of the matter. The formal order I make is that my decision is reserved.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 18 November 2005
Solicitor for the Applicants: R Gay of Shelston IP Lawyers Solicitor for the Respondents: The Respondents did not appear Date of Hearing: 9 November 2005 Date of Judgment: 9 November 2005
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