Health World Limited ABN 73 010 636 165 v Parmalat Australia Ltd

[2005] FCA 224

FEDERAL COURT OF AUSTRALIA

Health World Limited ABN 73 010 636 165 v Parmalat Australia Ltd
ABN 23 009 698 015 [2005] FCA 224

HEALTH WORLD LIMITED ABN 73 010 636 165 v PARMALAT AUSTRALIA LTD ABN 23 009 698 015

QUD 198 OF 2004

DOWSETT J
11 FEBRUARY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 198 OF 2004

BETWEEN:	HEALTH WORLD LIMITED ABN 73 010 636 165 APPLICANT
AND:	PARMALAT AUSTRALIA LTD ABN 23 009 698 015 RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	11 FEBRUARY 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion filed 21 December 2004 be dismissed insofar as it seeks relief pursuant to Order 20 Rule 2.

2.Costs 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
QUEENSLAND DISTRICT REGISTRY	QUD 198 OF 2004

BETWEEN:	HEALTH WORLD LIMITED ABN 73 010 636 165 APPLICANT
AND:	PARMALAT AUSTRALIA LTD ABN 23 009 698 015 RESPONDENT

JUDGE:	DOWSETT J
DATE:	11 FEBRUARY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application pursuant to Order 20 Rule 2 to stay or dismiss the proceedings upon the ground that they disclose no reasonable cause of action, or that they are frivolous or vexatious, or that they constitute an abuse of process. The applicant claims pursuant to ss 52 and 53 of the Trade Practices Act 1974 (Cth), and perhaps other provisions. The claim arises out of the marketing by the respondent of a milk-based product containing acidophilus under the name “Pauls Health Plus”. The applicant has, for some time, marketed a product sold in capsule form containing acidophilus and bifido, under the name “Inner Health Plus”, and “Inner Health Plus Dairy Free”. The respondent submits that the difference between the names, the total difference in getup and the difference in marketing locations are such that it is impossible for the applicant to succeed in these proceedings.

2. I have some sympathy with the application.  At the moment, the applicant’s case is not particularly promising.  However I do not accept that it is appropriate, in proceedings of this kind, to measure the similarities and differences and evaluate them so as to be satisfied on the balance of probabilities of any of the three situations identified in subrule (1) of Order 20 Rule 2.  I am, for the present, not so satisfied.  In those circumstances, the application must fail.  I therefore dismiss the motion insofar as it seeks relief pursuant to Order 20 Rule 2.

3. In the circumstances, and given the particularly unpromising nature of the case, it would be inappropriate to make an order for costs at this stage.  The costs will be reserved, which does not mean that they will necessarily follow the event.  We can revisit them in light of the outcome of the case.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             17 March 2005

Counsel for the Applicant:	Mr R Cobden
Solicitor for the Applicant:	Bennett & Philp
Counsel for the Respondent:	Mr R Lilley
Solicitor for the Respondent:	Biggs & Biggs
Date of Hearing:	11 February 2005
Date of Judgment:	11 February 2005