Flash and Partners Spa v Shvarts

[2008] FCA 1988

FEDERAL COURT OF AUSTRALIA

Flash and Partners Spa v Shvarts [2008] FCA 1988

Federal Court Rules O 8 r 2, O 15A r 3

FLASH AND PARTNERS SPA and EDWARDS IMPORTS PTY LTD (ACN 099 860 545) v GENNA SHVARTS and CRISTIAN GASPARINI

VID 1018 of 2008

HEEREY J
19 DECEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1018 of 2008

BETWEEN:

FLASH AND PARTNERS SPA
First Applicant

EDWARDS IMPORTS PTY LTD (ACN 099 860 545)
Second Applicant

AND:

GENNA SHVARTS
First Respondent

CRISTIAN GASPARINI
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	19 DECEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Pursuant to O 15A of the Federal Court Rules, the first respondent and the second respondent within 28 days make discovery of all documents, which are or have been in their possession, custody or control relating to the description of person or persons from whom they have purchased articles of clothing bearing the first applicant’s trademark or trademarks.

2.The respondents pay the applicants’ costs of the motion.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1018 of 2008

BETWEEN:

FLASH AND PARTNERS SPA
First Applicant

EDWARDS IMPORTS PTY LTD (ACN 099 860 545)
Second Applicant

AND:

GENNA SHVARTS
First Respondent

CRISTIAN GASPARINI
Second Respondent

JUDGE:	HEEREY J
DATE:	19 DECEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I am satisfied there should be an order under O 15A r 3(2) of the Federal Court Rules for discovery concerning the ascertainment of the identity of a prospective respondent. 

2. I note at the outset that there does not seem to be any dispute that the respondents have or are likely to have knowledge of facts or possession of documents tending to assist in such ascertainment: see O 15A r 3(2).  That itself is of some relevance. 

3. The proposed proceeding against the persons whose identity is sought would be within the jurisdiction of this Court.  The allegations include trade mark infringement of Australian trade marks.  The breach of the exclusive agreement would be caught up in the accrued jurisdiction of this Court.  Service out of the jurisdiction could be ordered under at least Items 1, 11 and 12 of O 8 r 2, if not others.

4. I am satisfied that reasonable inquiries have been made.  I do not think it would be consistent with modern philosophies of litigation to require the applicant to go through a charade of elaborate inquiries throughout the northern hemisphere of people who are likely to be uncooperative in any event, when the present respondents can quite obviously provide the necessary information.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:       8 January 2008

Counsel for the Applicants:	J A Ribbands
Solicitor for the Applicants:	Terence Grundy
Counsel for the Respondents:	A D Nash
Solicitor for the Respondents:	Freehills

Date of Hearing:	19 December 2008
Date of Judgment:	19 December 2008