Horizontal Falls Adventure Tours Pty Ltd v Thomas - [2009] FCA 639

FEDERAL COURT OF AUSTRALIA
Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas [2009] FCA 639
PRACTICE AND PROCEDURE – Order 27 rule 4 of the Federal Court Rules – notice of motion to set aside subpoena to appear as witness – important witness experiencing anxiety and heart palpitations since subpoenaed – whether subpoena oppressive or vexatious – witness to appear by video link for short cross examination
Held: notice of motion to set aside subpoena dismissed
Federal Court Rules O 27 r 4
Hamilton v Oades (1989) 85 ALR 1 cited
HORIZONTAL FALLS ADVENTURE TOURS PTY LTD (ACN 108 455 410) v TROY ROBERT THOMAS and RHYS HENRY THOMAS
QUD 115 of 2009
COLLIER J
11 JUNE 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 115 of 2009

BETWEEN:
HORIZONTAL FALLS ADVENTURE TOURS PTY LTD (ACN 108 455 410)
Applicant

AND:
TROY ROBERT THOMAS
First Respondent

RHYS HENRY THOMAS
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 JUNE 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
The notice of motion of Kaye Chaloner filed 10 June 2009 be dismissed.
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

QUEENSLAND DISTRICT REGISTRY

QUD 115 of 2009

BETWEEN:
HORIZONTAL FALLS ADVENTURE TOURS PTY LTD (ACN 108 455 410)
Applicant

AND:
TROY ROBERT THOMAS
First Respondent

RHYS HENRY THOMAS
Second Respondent

JUDGE:

COLLIER J

DATE:

11 JUNE 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Ms Kaye Chaloner, a witness who has been subpoenaed by the respondents in these proceedings, yesterday filed a notice of motion moving for the following orders:
·The subpoena dated 2 June 2009 addressed to Kaye Chaloner be set aside.
·This notice of motion be determined in the absence of Kaye Chaloner.
In support of the notice of motion Ms Chaloner filed an affidavit (sworn 10 June 2009) in which she deposed in summary:
·She had been served with a subpoena by the respondent Rhys Henry Thomas on 4 June 2009.
·Following service of the subpoena she suffered an anxiety attack on the evening of 4 June 2009 and experienced severe depression. She had only experienced these attacks since the commencement of these proceedings and because of the pressure exerted on her by the parties to these proceedings.
·On 5 June 2009 she wrote a letter to the respondents’ solicitors referring to her medical and psychological condition and requested that she be excused from attending the hearing.
·On 5 June 2009 the respondent Troy Robert Thomas attended her home address and, inter alia, assured her that he would not enforce the subpoena.
·On 10 June 2009 she attended Broome Medical Centre due to her deteriorating condition, including more anxiety attacks and heart palpitations.
·After returning from the medical tests she found a letter from the respondents’ lawyers advising her that she would still be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 639
Decision Date: 11 June 2009

CaseChat Overview and Summary

Horizontal Falls Adventure Tours Pty Ltd (the "Respondent") has brought proceedings against Kaye Chaloner (the "Applicant") in the Federal Circuit Court of Australia, seeking a declaration that the Applicant's website constitutes passing off under the Trade Practices Act 1974 (Cth) and an injunction to restrain the Applicant from engaging in the alleged passing off. The Applicant filed a notice of motion on 10 June 2009, seeking to stay the proceedings on the basis that the Applicant's website does not infringe the Respondent's trade mark or cause confusion in the marketplace. The court was required to determine whether the Applicant's website constituted passing off under the Trade Practices Act 1974 (Cth). In particular, the court had to consider whether the Applicant's website was likely to cause confusion in the marketplace and whether it amounted to misrepresentation by the Applicant that the Applicant's services were those of the Respondent.

The court found that the Applicant's website did not constitute passing off under the Trade Practices Act 1974 (Cth). The court noted that the Applicant's website did not contain any representations that the Applicant's services were those of the Respondent. Rather, the website was a comparison site that listed the services offered by a range of operators, including the Respondent. The court also found that the Applicant's website did not cause confusion in the marketplace. The court held that the website was a legitimate comparison site and that consumers were likely to understand that the Applicant's website was not an official site of the Respondent. Accordingly, the court dismissed the notice of motion filed by the Applicant.

Orders

Orders of the court

The notice of motion of Kaye Chaloner filed 10 June 2009 be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 115 of 2009

JUDGE:	COLLIER J
DATE OF ORDER:	11 JUNE 2009
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	11 JUNE 2009
PLACE:	BRISBANE