Dasch Pty Ltd v Bonnet Imports Pty Ltd

[1995] FCA 619

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 347 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:     DASCH PTY LIMITED

Applicant

AND:     BONNET IMPORTS PTY LIMITED

First Respondent

GARY PARKER

Second Respondent

REJECT PTY LIMITED

Third Respondent

SUNBIRD DISTRIBUTORS PTY LIMITED

Fourth Respondent

E COMRIE THOMSON AUSTRALIA PTY LIMITED

Fifth Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 1 August 1995

REASONS FOR JUDGMENT

BURCHETT J.:

On all the evidence it seems to me that there is room for the inference that members of the public would associate a particular range of statuettes of a particular design, colour, type and appearance or series of appearances with the applicant; and there is evidence to suggest that what is being sold is a deliberate copy of that range of products, which

would, as a matter of probability, have acquired some reputation in the marketplace.

In those circumstances it seems to me there is, within the meaning of the authorities, a prima facie case of a breach of s. 52 of the Trade Practices Act by the corporate respondents.  In the case of Mr Parker, there is quite suggestive evidence of a very personal involvement, and of a consciousness on his part, leading him to behave aggressively and unreasonably when challenged about the matter, a consciousness that, indeed, he was involved in breaches of the rights of the applicant.  In those circumstances I think there is also a prima facie case as regards him under s. 75B of the Trade Practices Act.

It is put that there has been a delay which should move my discretion against the grant of interlocutory relief.  There has been a delay of some three months in seeking the present interlocutory order, although the proceedings were commenced quite promptly - some evidence was filed quite promptly, and the applicant appears to have proceeded thereafter with reasonable dispatch to prepare further evidence, the last of its affidavits having only been filed, however, quite recently.  The respondents for whom Mr Giugni appears actually offered an undertaking, but not an undertaking to the court, an undertaking as between parties, and a copy of that has been tendered as exhibit 1.  It does seem to me that the inferences favouring the applicant have not been answered in any way by the respondents, and that some degree of delay on the applicant's part was reasonable, to assemble the evidence and to see whether the respondents would in fact put it in issue in a serious way, or whether on the other hand they would be prepared to consent to some interlocutory regime.

In all the circumstances, I do not think I should exercise my discretion against the applicant because of the delay that has occurred.  I think the balance of convenience, the applicant having given an undertaking as to damages, does favour my granting relief.  Proof of the damage done to the applicant by the continuance of the conduct alleged would pose problems, in my opinion, and in the absence of any attempt to justify what has been done, I consider that interlocutory relief as sought ought to be granted.  Accordingly, I shall make an order pursuant to paragraph 1 of the notice of motion, until further order, but I shall bring the matter back for further directions within four weeks.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 11 August 1995

Counsel for the Applicant:       Mr B.R. Manning

Solicitors for the Applicant:        J.E. Mills & Associates

Solicitor for the First and      Mr M.A. Giugni of
     Second Respondents:              Gates Moffitt

Counsel for the Third Respondent: Mr B. Debuse

Solicitor for the Third

Respondent:  Robert D. Jonas

Date of hearing:                 1 August 1995