Christian v Société Des Produits Nestlé S.A. (No 3)
[2014] FCA 1395
•22 December 2014
FEDERAL COURT OF AUSTRALIA
Christian v Société Des Produits Nestlé S.A. (No 3) [2014] FCA 1395
Citation: Christian v Société Des Produits Nestlé S.A. (No 3) [2014] FCA 1395 Parties: JAMES WILLIAM CHRISTIAN v SOCIÉTÉ DES PRODUITS NESTLÉ S.A., NESTLÉ AUSTRALIA LTD ACN 000 011 316, PREMIER NUTRITION CORPORATION and POST FOODS AUSTRALIA PTY LIMITED File number(s): NSD 940 of 2014 Judge(s): YATES J Date of judgment: 22 December 2014 Catchwords: PRACTICE AND PROCEDURE – application for change of venue for the hearing of an appeal Cases cited: Société Des Produits Nestlé S.A. & Anor v Christian & Anor (No. 4) [2014] FCCA 2025
Christian v Société Des Produits Nestlé S.A. (No 2) [2014] FCA 1159Date of hearing: Heard on the papers Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: In person Counsel for the Respondents: Mr S Burley SC with Mr B Mee Solicitor for the Respondents: Banki Haddock Fiora
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 940 of 2014
BETWEEN: JAMES WILLIAM CHRISTIAN
Appellant and Cross-RespondentAND: SOCIÉTÉ DES PRODUITS NESTLÉ S.A.
First Respondent and Cross-AppellantNESTLÉ AUSTRALIA LTD ACN 000 011 316
Second Respondent and Cross-AppellantPREMIER NUTRITION CORPORATION
Third Respondent and Cross-AppellantPOST FOODS AUSTRALIA PTY LIMITED
Fourth Respondent and Cross-Appellant
JUDGE:
YATES J
DATE OF ORDER:
22 DECEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appellant’s interlocutory application filed on 3 November 2014 (the interlocutory application) be dismissed.
2.The appellant pay the respondents’ costs of and incidental to the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 940 of 2014
BETWEEN: JAMES WILLIAM CHRISTIAN
Appellant and Cross-RespondentAND: SOCIÉTÉ DES PRODUITS NESTLÉ S.A.
First Respondent and Cross-AppellantNESTLÉ AUSTRALIA LTD ACN 000 011 316
Second Respondent and Cross-AppellantPREMIER NUTRITION CORPORATION
Third Respondent and Cross-AppellantPOST FOODS AUSTRALIA PTY LIMITED
Fourth Respondent and Cross-Appellant
JUDGE:
YATES J
DATE:
22 DECEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By interlocutory application filed on 3 November 2014, the appellant, James William Christian, seeks an order that the proceeding be transferred to the Victorian District Registry of the Court. The interlocutory application is supported by an affidavit affirmed by Mr Christian on 2 November 2014, and is made in the context of an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) (Société Des Produits Nestlé S.A. & Anor v Christian & Anor (No. 4) [2014] FCCA 2025), which has now been fixed for hearing by a Full Court in Sydney on 2 March 2015.
The grounds advanced
In his affidavit, Mr Christian advances the following grounds for the change in venue he seeks.
First, Mr Christian asserts that the proceeding in the Federal Circuit Court was not commenced in good faith and that, by reason of its commencement, he was forced to relocate from Ho Chi Minh City (where he had been living since 15 September 2009) to his “home city”, Melbourne.
Secondly, he says that the respondents’ solicitors, who are located in Sydney, commenced the proceeding “for their own advantage” in the Sydney Registry of the Federal Circuit Court.
Thirdly, he alleges that “false evidence” was introduced in the Federal Circuit Court proceeding:
… which caused the Federal Circuit Court to err when determining the question of trade mark infringement, and which has caused me great prejudice by being forced to remain in Melbourne to continue in these proceedings in an attempt to eventually receive fairness and justice in what has been a miscarriage of justice.
Fourthly, because different counsel have appeared, from time to time, for the respondents, Mr Christian says that the respondents will not be prejudiced by briefing counsel in Melbourne.
Fifthly, Mr Christian says that the respondents’ solicitors:
… have to date received advantage and success for Nestlé resulting from proceedings which were not commenced in good faith and this has caused me not only great prejudice but also a constitutional disadvantage as I have not had a fair go, and fairness is implied to be the right of everyone.
Sixthly, Mr Christian says that he does not have the financial means to travel and stay in Sydney. He says that, if the proceeding is transferred to the Victorian Registry of the Court, he will be able to attend the Registry in Melbourne in person to seek assistance in preparing the appeal book as well as appear at the hearing in person.
Consideration
This is the second application Mr Christian has made to change the venue for the proceeding. His first application was made when seeking leave to appeal from the judgment of the Federal Circuit Court. I rejected that application: Christian v Société Des Produits Nestlé S.A. (No 2) [2014] FCA 1159 (my earlier reasons).
In my earlier reasons, I said (at [17]-[18]):
17There was a further matter raised in the applicant's interlocutory application dated 16 September 2014. It relates to a change of venue for the hearing of the appeal. On 2 October 2014, or perhaps earlier, I understood the applicant’s position to be that he was not seeking that relief. However, today, he reagitated that matter. He raised, in that regard, the question of a possible difficulty in settling appeal books. In my view, that is not a sufficient reason for changing the venue of the hearing of the appeal from Sydney to Melbourne.
18The applicant also raised his own difficulties in attending such an appeal. However, this will be the applicant's appeal, and, at the present time, I can see no good reason to subject the respondents to the significant costs of conducting the hearing of an appeal in Melbourne having regard to the fact that the applicant has already filed an affidavit in this application indicating his presently impecunious position. Secondly, it seems to me that there is no good reason why the applicant cannot travel to Sydney for the hearing of the appeal. Thirdly, it is at least possible that the hearing of the appeal can take place by either telephone or by videolink. Whether either of those courses is at all appropriate is not a matter that I propose to consider at the present time. Further, the respondents have foreshadowed the filing of a notice of cross-appeal, and I wish to have a clear understanding of what would be involved in the cross-appeal before considering any application that might be made in that regard.
It can be seen that a number of the grounds advanced by Mr Christian in that application are mirrored in the present application. There is no matter presently advanced that was not advanced, or could not have been advanced, by Mr Christian at the time his first application for a change of venue was made. In substance, the present application is really a reagitation of his unsuccessful application. In my view, the present application is an abuse of the Court’s process and should be dismissed for that reason alone.
Nevertheless, there are some matters raised by Mr Christian in his affidavit which should not be left unanswered.
First, there is no material presently before the Court to suggest that the proceeding in the Federal Circuit Court was not commenced in good faith. Indeed, the Federal Circuit Court has found that Mr Christian infringed the respondents’ registered trade marks. Whether that judgment is correct is a matter to be determined in the appeal to this Court. Mr Christian’s allegation does not stand as a reason for a change of venue.
Secondly, there is no material before the Court to suggest that Sydney was not the appropriate venue for the hearing of the Federal Circuit Court proceeding.
Thirdly, I am aware from Mr Christian’s application for leave to appeal that he wishes to argue that “false evidence” was introduced in the Federal Circuit Court proceeding. This allegation, however, is related to his first ground of appeal, which is that the Federal Circuit Court erred when determining the question of trade mark infringement by taking into account his logo referred to as the first A‑SASHI logo. Whether the Federal Circuit Court erred in that regard is, once again, a matter to be determined in the appeal, and does not stand as a reason for a change of venue.
Fourthly, it is for the respondents to determine who will be their legal representatives. The respondents should not be disadvantaged in that regard simply because Mr Christian wishes to have the appeal heard in Melbourne.
Fifthly, orders made by me on 21 November 2014 concerning the preparation of the appeal book will not require Mr Christian’s personal attendance at any Registry of the Court. I have already addressed, in my earlier reasons, Mr Christian’s claim concerning his inability to attend the hearing in Sydney.
Mr Christian’s application for a change of venue is wholly without merit and should, for that additional reason, be dismissed.
Disposition
The interlocutory application filed on 3 November 2014 will be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 22 December 2014
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